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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


m 


PRACTICAL  TREATISE 


ON 


ABSTRACTS 


AND 


EXAMINATIONS  OF  TITLE 


TO 


REAL  PROPERTY. 


BY 


GEORGE  W.  WARVELLE,  LL.D., 

AUTHOR  OF  A  TREATISE  ON  VENDOR  AND  PURCHASER,  PRINCIPLES  OF  THE  LAW 
OF    REAL   PROPERTY,    ETC. 


THIRD  EDITION. 


CHICAGO: 

CALLAGHAN    AND    COMPANY, 
1907- 


T      ' 

mi 


Entered   According   to   Act  of   Congress,    in   the   year   1883, 

By    GEORGE    W.    WARVELLE, 

In    the   Office    of   the   Librarian    of   Congress,    at   Washington. 


Entered   According   to   Act   of    Congress,   in    the   year   1892, 

By    GEORGE    W.    WARVELLE, 

la   the   Office    of   the   Librarian   of   Congress,    at   Washington. 


Copyright,  1907, 
By  GEORGE  W.  WARVELLE 


a 


TO 

HON.  JOSEPH  V.  QTTAKLES, 

OF    MILWAUKEE,    WIS., 

ONE   OF   THE    JUDGES    OF    THE    DISTRICT    COURT    OF   THE   UNITED 

STATES,    THIS    VOLUME    IS    INSCRIBED,    AS    A 

TRIBUTE    OF   RESPECT    BY 

THE  AUTHOR. 


PEEFACE. 

In  presenting  a  third  edition  of  this  work  I  have  made  no 
change  in  either  the  method  of  arrangement  or  general  treat- 
ment of  the  subject  pursued  in  the  first  edition.  The  text  has 
been  enlarged  by  the  introduction  of  new  topics  and  a  more 
extended  discussion  of  old  ones,  and  a  number  of  additional 
practical  forms  have  been  incorporated.  I  have  not  attempted 
to  compile  a  work  on  Real  Property,  nor  even  upon  the  Title 
to  Real  Property,  and  notwithstanding  that  this  latter  topic 
receives  constant  mention  throughout  the  volume  it  is  yet  but 
an  incident  to  my  main  purpose.  My  object  has  been  the 
furnishing  of  practical  aids  and  suggestions  to  those  who  pre- 
pare and  examine  abstracts  of  title,  and  to  this  end  I  have  de- 
voted much  space  to  what  may  be  regarded  as  the  mere  me- 
chanical execution  of  the  work.  The  statements  of  law  are 
necessarily  brief,  and,  for  the  most  part,  elementary. 

It  is  now  about  twenty-five  years  since  the  first  edition  ap- 
peared. The  uniform  favor  with  which  successive  editions 
have  been  received  by  the  profession  emboldens  me  to  hope 
hope  that  this  revision  will  be  equally  acceptable,  and  that  in 
the  practical  work  of  the  demonstration  of  land  titles  it  may 
be  found  a  helpful  assistant. 

G.  W.  W. 

Chicago,  Oct.  1,  190?. 


PEEFACE  TO  FIRST  EDITION". 

I  have  no  apology  to  make  for  the  appearance  of  this  book, 
but  a  word  or  two  of  explanation  may  be  in  order. 

The  subject  which  I  have  here  undertaken  to  elaborate,  is 
new  to  the  legal  literature  of  the  United  States,  although  ab- 
stracts of  title  have  long  been  employed  by  the  profession  in  all 
matters  pertaining  to  title  of  real  property.  But  with  each 
successive  year  it  has  assumed  vaster  proportions,  and,  as  the 
country  continued  steadily  to  develop,  it  has  gradually  been 
shaping  itself  into  a  distinct  branch  of  legal  science,  that  calls 
for  a  high  degree  of  technical  skill  and  special  learning.  And 
this  has  reference  both  to  conveyancers  and  lawyers ;  the  one 
to  properly  and  systematically  compile,  and  the  other  to  in- 
terpret, the  evidences  of  title  which  go  to  support  claims  of 
ownership  in  land. 

ISTo  American  author  has  heretofore  seen  fit  to  epitomize,  for 
the  special  use  of  conveyancers  and  the  legal  profession,  the 
questions  of  law  which  arise  during  the  perusal  of  an  abstract, 
or  to  direct  the  attention  of  either  class  toward  a  systematio 
method  of  presenting  those  questions.  Eminent  writers  on 
real  property  have  passed  the  subject  in  silence,  and  the  few 
American  writers  on  conveyancing  who  have  heretofore  ven- 
tured to  touch  upon  it,  have  dismissed  it  with  the  fewest  possi- 
ble wrords,  and,  as  a  rule,  whatever  remarks  they  may  have  made 
were  usually  but  servile  echoes  of  English  writers. 

Several  works,  of  more  than  ordinary  merit,  have  appeared 
in  England,  in  which  the  subject,  from  an  English  standpoint, 
is  very  thoroughly  and  ably  discussed,  but  the  irreconcilable 
differences  in  our  laws  and  institutions  have  rendered  them 
comparatively  worthless  to  the  American  practitioner,  and 
they  are  rarely  met  with  on  this  side  of  the  Atlantic.     The 

vii 


VI 11 


TREFACE. 


methods  of  English  conveyancers  and  solicitors,  while  admira- 
blv  adapted  to  the  exigencies  of  their  own  laws  and  customs, 
and  highly  conducive  to  the  end  desired,  are  but  ill  suited  to  our 
wants  and  furnish  little  assistance  in  tracing  the  devious  courses 
of  an  American  title. 

In  view  therefore,  of  the  constantly  increasing  importance 
of  abstracts  of  title,  and  the  present  inadequate  means  of  in- 
formation concerning  the  same,  I  have  been  prompted  to  write 
this  book.  It  combines,  not  only  the  result  of  my  own  ex- 
perience, both  in  the  preparation  of  abstracts  and  in  passing 
titles  therein  presented,  but  also  the  experience  of  a  number  of 
eminent  conveyancers  and  lawyers  whom  I  have  freely  con- 
sulted during  its  preparation. 

I  have  endeavored  to  give  a  general  outline  of  what  I  con- 
sider the  best  methods  of  compiling  the  abstract  so  as  to  in- 
sure the  most  satisfactory  results ;  a  general  system  for  the  ar- 
rangement of  the  several  parts  and  formal  divisions;  and  the 
latest  approved  plans  for  presenting  the  essential  matter  of 
deeds,  instruments  and  proceedings  affecting  title  necessary  to 
be  shown.  I  have  further  made  a  few  suggestions  relative  to 
laying  out  and  keeping  a  set  of  abstract  indices,  the  great  utility 
of  which  must  be  apparent  without  comment.  To  reduce  the 
work  within  the  smallest  allowable  space,  as  well  as  to  prevent 
confusion,  I  have  made  but  few  allusions  to  local  statutes, 
while  the  statements  of  law  have  been  confined  mainly  to 
broad  and  commonly  accepted  doctrines.  It  is  expected  that 
the  careful  practitioner  will  be  fully  posted  on  the  laws  of  his 
own  State  relative  to  descent,  purchase,  etc.,  and  hence  the  rules 
here  given  are  of  general  application  only.  As  this  book  is 
intended  for  the  use  of  conveyancers,  as  well  as  for  the  legal 
profession,  it  has  been  deemed  best,  in  many  instances,  to 
elucidate  only  those  principles  which  are  elementary  in  their 
nature,  and  to  avoid  subtilties  or  extended  discussions. 

Though  this  work  is  entirely  the  result  of  my  own  personal 
labor,  I  am  under  many  obligations  to  gentlemen  of  the  bar  for 
advice  and  suggestion,  and  particularly  would  I  express  my 
thanks  to  S.  M.  Henderson,  Esq.,  and  Messrs.  Haddock,  Val- 


TREFACE.  IX 

lette  &  Rickcords?  of  Chicago,  for  the  very  valuable  assistance 
rendered  in  the  preparation  of  many  of  the  forms. 

I  trust  that  my  work  may  meet  the  favor  of  the  profession, 
and  be  of  real  utility  and  assistance  to  them ;  that  it  may 
serve  to  assist  in  creating  a  better  understanding  between  con- 
veyancer and  counsel,  by  acquainting  each  with  the  methods 
of  the  other;  and  that  it  may  be  instrumental  in  building  up 
a  symmetrical  system  of  title  abstracts  in  this  country. 

G.  W.  W. 

Chicago,  Sept.  1,  1883. 


ANALYSIS  OF  CONTENTS. 


CHAPTER  I. 

PRELIMINARY  OBSERVATIONS. 
SEC.  PAGE. 

1.  Introductory    1 

purport  of  the  work 1 

2.  Abstracts     denned 2 

3.  Origin  of  abstracts 2 

4.  Essentials    of    the    abstract 3 

5.  The  English  method 3 

6.  The  American   method 4 

7.  Abstracts  and   examinations   distinguished 5 

8.  Qualifications  of  the  examiner 6 

9.  Examiner's  liability  for  error 7 

implied  skill  and  knowledge 8 

necessary  conditions  to  fix  liability 8 

10.  Character    of    examiner's    liability 11 

11.  Duty   of    furnishing   abstract 11 

vendor  to  furnish  when 12 

custody  and  ownership  of 13 

12.  Taxation  of  abstract  books 13 

13.  Exemption  of  abstract  books 15 


CHAPTER  II. 

TITLE  TO  REAL  PROPERTY. 

14.  Property  and  title  distinguished 16 

15.  Acquisition  of  title 16 

by    descent : 17 

by    purchase 17 

other    distinctions 17 

16.  Classification  of   title 17 

Blackstone's    divisions 17 

American  divisions    17 

bad,   doubtful    and   perfect 18 

legal    and    equitable IS 

17.  Sources   of   title 18 

t  he    King    18 

the    State    19 

xi 


Xli  ANALYSIS    OF    CONTENTS. 

SEC.  PAGE. 

18.  Nature  of  title  in  the  United  States 19 

all   land   held   in  allodium 20 

submission   to  legislative   control 20 

19.  Estates   under   allodial   titles 21 

fee    simple    21 

for   life    21 

for   years    21 

possession   and   expectancy 22 

reversions   and   contingencies 22 

20.  Uses  and  trusts 22 

21.  Powers 23 

22.  Homesteftds     25 

23.  Dower    and    curtesy 26 

24.  Terms   of  years    29 

25.  Easements  and   servitudes 30 

26.  Color    of   title     32 

27.  Evidences  of  title 32 

28.  Alienation     and    descent 33 

CHAPTER    III. 

TITLE   BY   DESCENT. 

29.  Nature   of  the   title 35 

30.  Eules    of   descent 36 

31.  Consanguinity     37 

methods   of  computation 37 

by  the  common  law 38 

by    the    civil    law 38 

table  of  degrees  of  consanguinity 40 

32.  Affinity 39 

33.  Adoption     39 

34.  Proof   of    heirship 41 

35.  Proof    of    death 42 

36.  Conveyances   by  heirs 42 

CHAPTER  IV. 
TITLE    BY    PURCHASE. 

37.  Nature   of   the   title 44 

methods    of    purchase 44 

38.  Deed 45 

39.  Devise     45 

40.  Public   grant    45 

41.  Estoppel    4(5 

42.  Technical  estoppel    47 

43.  Equitable    estoppel     49 

44.  Relation    51 


ANALYSIS    OF    CONTENTS.  XH1 

SEC.  PAGE. 

45.  Prescription   and   limitation    52 

46.  Accretion    and    reliction 53 

rules   for   measurement    55 

47.  Avulsion     56 

48.  Riparian  titles    59 

49.  Dedication    57 

50.  Confirmation     , 58 

51.  Occupancy     60 

52.  Abandonment     61 

53.  Eminent    domain 62 

54.  Title  acquired  by  eminent  domain 63 

55.  Escheat     64 

56.  Confiscation     66 

57.  Forfeiture     67 


CHAPTER  V. 

SOURCES    OF   INFORMATION. 

58.  Records     68 

defined     68 

dignity  of   68 

59.  Depositories  of    records 69 

60.  The  right  of  inspection  of  records 69 

61.  Doctrine  of  notice 74 

62.  Constructive  notice    74 

63.  Actual   notice    76 

64.  Registration     77 

65.  Effect   of   recording   acts 78 

66.  Loss  or  destruction  of  record 81 

67.  Official   aids  to   search 82 

68.  Grantor  and  grantee  indexes 82 

69.  Notice    lis    pendens     84 

70.  Plaintiff  and  defendant  indexes 84 

71.  Tax  records    84 

72.  Official    certificates     84 

73.  Church  and  parish  records 85 


CHAPTER  VI. 

INDICES    AND    REFERENCES. 

74.  Importance  of  indexes 86 

75.  Patent  systems    86 

76.  The  government  tract  book 87 

index    compiled   from 87 

77.  Field    notes  of   government  surveys 88 

uses  of  in  abstracting 88 


XIV  ANALYSIS    OP    CONTENTS. 

SEC.  PAGE. 

78.  The   original   entry 89 

method  of   arranging  books 89 

illustration  of  sample  page 90 

method   of    compilation 90 

79.  Document   number    index 91 

method   of    compilation 91 

illustration  of  sample  page 91 

80.  Long  form  entries 91 

81.  The  tract  index 92 

how    compiled     92 

sample    page, 93 

82.  Irregular    index    94 

83.  Tax   index    95 

method  of  compilation 95 

sample  page    96 

84.  Judgment    index     96 

sample  page   97 

85.  Decrees  and  sales  in  chancery 97 

86.  Vowel   index    97 

87.  Laying   out   the   books 98 

scale    for   indexing 99 

88.  Resume    . 99 

CHAPTER  VII. 

COMPILING   THE  ABSTRACT. 

89.  Generally  considered    101 

90.  The  extent   of  the   search 102 

91.  Making  the   chain 104 

92.  Formal    parts 104 

93.  The    caption    105 

for   general   examination 105 

for    assumption    of   title 108 

for    special    examination 108 

for  tax      abstract 109 

94.  Arrangement  of  the  abstract 109 

practical  example   110 

95.  Synopsis   of   instruments 112 

96.  Fullness  of  narration 113 

97.  Instruments  shown  for  reference 114 

98.  Examiners'    notes 115 

99.  Irregular    instruments 116 

100.  Reference  to  original  instruments  and  private  memoranda 116 

101.  Abbreviations 117 

102.  Letter   press   copies 117 

103.  Concluding    certificate 118 

practical    example 119 

order  for  examination 118 


ANALYSIS    OF    CONTENTS.  XV 
•  CHAPTER  VIII. 

INCEPTION    OF   TITLE. 
SEC.  PAGE. 

104.  Preliminary  stages  of  title 124 

105.  Inceptive  measures  under  the  U.  S.  land  laws 125 

106.  Disposal   of  the  public  lands _ 126 

107.  Public  land  sales 127 

108.  Private  entry  of  lands 128 

origin    of    term 128 

entry,    how    made 128 

109.  Nature  of  the  title  conferred  by  entry 129 

110.  What  lands  subject  to  entry 131 

111.  Pre-emption    entries 131 

1 12.  Nature  of  pre-emption  rights 133 

113.  Conveyances  before  entry 135 

114.  Graduation    entries 136 

1 15.  Donation    entries 137 

116.  Homestead  entries 138 

117.  Rights  acquired  under  homestead  acts 140 

1 18.  Desert  land  entries 140 

119.  Tree    claims 141 

120.  Location   by   military  warrants 142 

121.  Land    scrip 143 

Virginia    military    scrip 143 

Indian  or  half-breed   scrip 143 

private   land    scrip 144 

agricultural    college    scrip 145 

122.  Swamp    land    grants 145 

act   of    1S49 145 

act   of    1850 145 

123.  School     lands 147 

124.  Internal    improvement    grants 148 

125.  Land  grants  to  railroads .' 149 

126.  Public    highways • 151 

126a.  Private   land   claims 151 

127.  Who  may  acquire  a  title 152 

128.  Inceptive  measures  in  the  abstract 153 

CHAPTER  IX. 

INITIAL   STATEMENTS. 

129.  The   government  entry 155 

practical   form 155 

130.  The  donative  act    156 

practical    form 157 

131.  Continued,    section    sixteen 157 

practical   form 158 

practical   form  for  lieu  land 158 


XVI  ANALYSIS    OF    CONTENTS. 

SEC.  PAGE. 

132.  Confirmations     159 

133.  Town  site  entries   161 

act  of  1864 161 

act   of    1865 161 

act   of    1867 161 

134.  The   receiver's  receipt 163 

practical     form 164 

135.  State    lands 165 

commissioner's    receipt 166 

136.  The  root  of  title 166 

CHAPTER  X. 
CONGRESSIONAL   AND  LEGISLATIVE   GRANTS. 

137.  Legislative    grants    generally   considered 168 

138.  Nature   and    effect 168 

from   the   United   States 168 

from   the   State 169 

139.  Construction   of   legislative   grants 170 

140.  Formal    requisites 171 

practical    form 172 

CHAPTER    XL 

PATENTS. 

141.  Patents    defined     174 

149.  Patents   from  the  United  States    174 

formal    parts    175 

150.  Validity    175 

151.  Continued    delivery     170 

patents    need    no    delivery    17. 

take   effect   by   registration    178 

152.  General    land   office   record    178 

its  object  and  purport    179 

153.  Operation   and   effect  of   patents    180 

its    evidence   of   governmental    action    180 

when  operating  only  as  a  quit-claim    181 

154.  Continued     181 

by    what    laws    patents    construed    182 

purchaser  need  not  look  behind  patent  182 

but  is  chargeable  with  defects  upon  its  face  182 

155.  Construction    182 

156.  Formal     requisites     183 

abstract  of  patent 184 

157.  Patents    from    the    State     185 

classification    of    State    lands     185 

history    of    State    titles     185 

to    what    State   patents    confer   title    186 


ANALYSIS    OF    CONTENTS.  XV11 

SEC.      .  PAGE. 

158.  State  patents,  continued  187 

159.  Formal  requisites  of  State  patents   187 

by  whom   issued    188 

CHAPTER  XII. 

SUBVEYS,  PLATS  AND  SUBDIVISIONS. 

160.  General   remarks    189 

161.  Divisions   of  the  public   domain    189 

townships     190 

sections     19 1 

plan   of  township,   numbers  and   base  lines    191 

township    plats    19 1 

163.  Subdivision  of  sections   192 

illustration  of  legal  subdivisions    193 

illustration   of    fractional .  section    194 

sketch  maps    195 

164.  Rectangular  system  of  U.  3.  surveying  195 

principal   base   line   and   meridian    196 

165.  Meander    lines     197 

166.  Plats   and    subdivisions    198 

167.  Formal  requisites 199 

abstract  of  subdivision 200 

168.  Effect    of    registration    201 

169.  Vacation   and    cancellation    202 

abstract  of  vacation   203 

170.  Dedication   by   plat 204 

distinguished   from  reservation    205 

171.  Re-surveys    205 

CHAPTER  XIII. 

FORMAL  PARTS  OF  DEEDS. 

172.  Operative  parts  of  a  deed   207 

173.  Names  of  parties   208 

1 74.  Grantors 208 

175.  Grantees 210 

176.  Nature  of  the  instrument   212 

177.  Date  of  instrument. 212 

178.  Registration     214 

179.  Consideration 214 

180.  Effect   of   consideration    215 

181.  Words  of  grant    217 

when  implying  covenants  217 

182.  Words  of  purchase  and  limitation    218 

rule  in  Shelly's  case  218 

183.  Description    of    property    220 

184.  Description,    sufficiency 220 


XVI 11  ANALYSIS    OF   CONTENTS. 

SEC.  PAGE. 

185.  Description,  identification 221 

186.  Description,  construction    221 

is 7.     Special    recitals    t 223 

188.  The   habendum    ' 224 

189.  Exceptions    and    reservations    224 

190.  Conditions    and    restrictions    225 

191.  Covenants     228 

192.  Execution     230 

193.  Signature     230 

104.  Seal 231 

195.  Attestation     233 

196.  Acknowledgment     233 

197.  Delivery    237 

1 98.  Ancient    deeds     240 

199.  Stamps .  241 

CHAPTER  XIV. 

ERRORS,  OMISSIONS   AND  DEFECTS. 

200.  Error    generally     243 

201.  Defect   of   parties,   grantor    244 

202.  Defect    of    parties,    grantee     246 

203.  Disparity   of    dates 248 

2C  i.  Technical    phrases    249 

205.  Z  misdescription,    uncertainty     250 

206.  Z  Iisdescription,  omission 251 

207.  Misdescription,     Quantity 252 

208.  Defective  covenants    252 

209.  Defective  acknowledgment    254 

2 10.  Continued  ._ 256 

certificates  of  conformity    258 

21 1.  Repugnancy 260 

CHAPTER  XV. 

CONVEYANCES  BY  INDIVIDUALS. 

212.  Deeds  in  general , 261 

213.  Deeds   poll  and   indentures    262 

214.  Construction    and    effect    of   deeds    214 

215.  Validity 263 

void  and  voidable  distinguished   216 

latent   ambiguities    264 

216.  Warranty  deeds    * 265 

legal   import    265 

217.  Abstract    of   warranty    deed    266 

practical    example     266 

218.  Notes 267 


ANALYSIS    OF    CONTENTS.  XIX 

SEC.  PAGE. 

219.  Quit-claim   deeds    : . 267 

legal  import   268 

220.  Abstract  of  quitclaim  deeds   270 

221.  Effect  of  covenants  in  quit-claim  deeds    271 

222.  Special    waranty    deeds 272 

legal  effect    272 

223.  Statutory  forms   .' ...  273 

224.  Common  law   conveyances    274 

225.  Release    i 275 

226.  Confirmation    27G 

227.  Surrender     270 

practical  example 277 

228.  Assignment 278 

229.  Conveyances   in   futuro    .  .  .  ., 278 

practical  example   280 

230.  Conveyance   of   special    interests    and   estates    281 

231.  Continued,  instances    283 

practical  example    285 

232.  Restrictive   and   conditional    conveyances    285 

233.  Prohibited   conveyances,   adverse  seizin    288 

234.  Continued,    fraudulent    conveyances    28j9 

235.  Conveyances  subject  to  incumbrance 289 

236.  Dedication  by  deed  291 

237.  Resulting    trusts     292 

238.  Re-records  and  duplicates    ! 293 

practical    example     293 

249.     Corrected  records 294 


CHAPTER  XVI. 

SPECIAL  CLASSES  OF  INDIVIDUAL  CONVEYANCES. 

240.  Marriage    settlements     295 

24 1.  Conveyances  to  husband  and  wife    296 

community    property    297 

242.  Conveyances   between   husband   and  wife £99 

243.  Conveyances   by  married   woman 300 

244.  Effect    of    wife's    conveyance     302 

245.  Continued  acknowledgment    302 

246.  Release  of  dower „   304 

practical  example    305 

247.  -Joint   tenancies  and  tenancies  in  common    306 

248.  Partition  deeds    306 

practical  example    307 

240.     Partnership  conveyances 308 

250.  Corporate  conveyances    310 

251.  8ta1  utes  of  mortmain    312 

252.  Power    of    acquisition ;    user     312 


XX  ANALYSIS    OF    CONTENTS. 

SEC  PAGE. 

253.     Municipal    corporations 313 

25  1.     Conveyances  to  corporations    314 

2.35.     Conveyances    by    corporations     315 

practical   example    317 

25G.     Continued;    execution,    acknowledgment    318 

practical  example 319 

257.  Acts  of  officers  in  excess  of  charter  powers 321 

258.  Record    of    seal    322 

259.  Conveyances  by  incorporated  religious   societies 323 

260.  Heirs   at   law 323 

261.  Post-obit    conveyances    324 

262.  Conveyances    by    delegated    authority    325 

practical    example     325 

263.  Powers  of  attorney 327 

practical    example     329 

264.  Revocations    330 

265.  Conveyances  in  trust    331 

266.  Revocation    of    trust 334 

267.  Declarations    of    trust     334 

practical    example     335 

268.  Removal  or  substitution  of  trustees    336 

269.  Resignation,   refusal  to  act    337 

CHAPTER  XVII. 

OFFICIAL    CONVEYANCES. 

270.  Defined   and    distinguished 338 

271.  Official  deeds  generally   339 

272.  Recitals     339 

273.  Covenants 340 

274.  Sheriff's  deed ;   on  execution 340 

275.  Continued ;    acknowledgment     342 

276.  Continued ;   operation   and  effect    343 

277.  Continued ;    imperfect    description    344 

278.  Statutory   sheriff's    deeds     344 

practical  example    345 

279.  Sheriff's  deed ;   under  decree 346 

280.  Master's,  commissioner's  and  referee's  deeds   3-16 

practical  example   347 

281.  Trustees 347 

282.  Transfers    of   the   legal    estate   by   trustees    349 

283.  Power  of  sale  and  trust  of  sale  distinguished   350 

284.  Trustee's  deeds   352 

practical   example    353 

285.  Mortgagee's   deeds    356 

28(1.     Executors   and   administrators    357 

287.     Executor's    deeds 358 


ANALYSIS    OF    CONTENTS.  XXI 

SEC.  PAGE. 

288.  Administrator's  deeds   359 

practical  example    361 

289.  Administrator  with   will   annexed    363 

290.  Guardian's   deeds    364 

291.  Trustees  can  not  become  purchasers   365 

292.  Continued;   exceptions   and  qualifications    366 

CHAPTER  XVIII. 

ASSIGNMENTS,   INSOLVENCY   AND   BANKRUPTCY. 

293.  Assignments   generally    367 

294.  Voluntary    assignments 368 

295.  Validity   of    assignments    369 

296.  Formal  requisites   369 

297.  Title  of  assignee  371 

298.  Construction  and  effect 372 

299.  Conflict   of   laws;    foreign   assignments    372 

300.  Insolvency 373 

301.  Bankruptcy    373 

302.  Jurisdiction    and   practice 373 

303.  Classification     .' 374 

304.  Nature  and  effect  of  bankruptcy   375 

305.  Procedure 375 

306.  Bankruptcy  proceedings;   how  shown 376 

practical  example    376 

307.  The  assignment 377 

practical    example     378 

308.  Assignee's   or   Trustee's   deed    379 

practical  example    379 

309.  Discharge    in   bankruptcy    381 

practical    example     382 

CHAPTER  XIX. 

AGREEMENTS   FOR  CONVEYANCE. 

310.  Land    contracts     383 

311.  Relation  of  parties  under  land  contracts 384 

312.  Effect  and  operation  of  the  contract 384 

313.  Nature  and  requisites    385 

314.  As  affected  by  the   recording  acts 386 

315.  Construction  of  land   contracts    386 

316.  Formal  parts 387 

abstract  of  agreement  to  deed 387 

317.  Assignment  of  the  contract 388 

318.  Performance;  sufficiency  of  deed  and  title 389 

319.  Forfeited   contracts 391 

320.  Bond  for  deed   392 

practical   illustration    393 

321.  Agreements  for  conveyance  by  will   393 


XX11  ANALYSIS    OF    CONTEXTS. 

CHAPTER  XX. 

LEASES. 
SEC.  PAGE. 

322.  Nature  and  requisites   395 

323.  Formal    parts    396 

abstract  of  lease 397 

324.  Covenants   and   conditions    398 

325.  Implied    covenants     400 

326.  Agricultural  lands 400 

327.  Assignment  of  lease 401 

CHAPTER  XXI. 

JIISCELLANEOL'S  EVIDENCE   OF   AND   AFFECTING   TITLE. 

328.  General  remarks   403 

329.  Irregular  instruments   403 

330.  Municipal  ordinances    404 

practical   example    405 

331.  Executive  approval  of  ordinances 407 

332.  Operation  and  effect  of  ordinances    408 

333.  Municipal   resolutions 408 

334.  Official    certificates 410 

practical   example    411 

335.  Incorporeal  hereditaments 411 

336.  Easements   and  servitudes 412 

337.  Party  wall  agreements    413 

practical   example    414 

338.  Letters    415 

339.  Affidavits    415 

practical   example    416 

340.  Continued ;   general   requisites;    sufficiency 417 

341.  Unrecorded   evidence    417 

CHAPTER  XXII. 

MORTGAGES. 

342.  Nature  of  mortgages  419 

343.  Different   kinds   of    mortgages 420 

344.  The   equity   of   redemption    422 

345.  Rights   of  mortgagor    423 

346.  Mortgages  as   affected  by  estoppel    423 

347.  Merger     424 

348.  Equitable  mortgages    426 

rules  for  determining 426 

import    and    effect    427 

349.  Vendor's  liens 428 

3")0.     Mortgages   proper    429 

abstract  of 430 


ANALYSIS    OF    CONTENTS.  XX111 

SEC.  PAGE. 

351.  Statutory  forms   431 

352.  Uncertainty  or  error  of  description   432 

353.  Covenants  in  mortgages   433 

354.  Effect   of   special   covenants    434 

355.  Special   stipulations  and  conditions    434 

356.  Effect  of  informality '.  ...  435 

357.  Purchase    money    mortgages     436 

practical   examples    437 

358.  Mortgages   of  homestead    437 

359.  Mortgage  of  after-acquired  property   438 

360.  Record  of  mortgages    440 

361.  Notice    imparted    from    possession    441 

362.  Re-records 441 

363.  Trust  deeds   442 

practical  example 443 

364.  Power  of  sale   445 

365.  Assignment 447 

366.  Operation   and   effect   of   assignments    448 

367.  Formal   requisites   of   assignments    449 

368.  Release    and    satisfaction .  450 

369.  Form  and  requisites  of  release 451 

practical    example     452 

370.  Release   by  trustee    452 

371.  Marginal   discharge .  454 

practical  example   455 

372.  Foreclosure     456 

373.  Proof   of   title   under    foreclosure 456 


CHAPTER  XXIII. 
wnxs. 

374.  Wills   generally    458 

375.  Nuncupative    wills     459 

376.  Nature  of  testamentary  titles 459 

377.  Devises    , 460 

378.  Operation   and   effect  of  devises    460 

379.  Validity  of  devises 461 

380.  Testamentary    capacity     461 

381.  Construction  of  wills 462 

381a.  Errors  of  description    465 

382.  Repugnancy 466 

383.  Descent  and  purchase   467 

384.  Words    of    grant     468 

385.  Words  of  purchase  and  limitation   468 

386.  ftule    in    Shelly's   case 470 

387.  Interpretation  of  particular  words  and  phrases 471 

388.  Words  which  pass  real  estate 473 


XXIV  ANALYSIS    OF    CONTENTS. 

SEC.  PAGE. 

389.  Limitations  and  remainders  475 

390.  Devise  to  a  class    476 

391.  Gift  of  the  income  of  realty 476 

392.  Devise  with   power  of  disposition 477 

393.  Indeterminate    devise    480 

394.  Devise  on  condition  precedent 481 

395.  Conditional  devise;   marriage    482 

396.  Contingent  remainders 483 

397.  Contingent    reversion    484 

398.  Devise  to  married  woman    484 

399.  Devises  to  executors   in  trust    485 

400.  Bequest   to  the  devise  by  description    487 

401.  Precatory  trusts   488 

402.  Perpetuities     489 

403.  Lapsed    devise 489 

404.  Devises   for  the  payment  of  debts    490 

405.  Charges  on  lands   devised    490 

406.  Equitable    conversion    492 

407.  The   residuary   clause 493 

408.  Codicils 494 

409.  Revocation 495 

410.  Formal    requisites    495 

411.  Abstract  of  wills 496 

412.  Method  of  arrangement   498 

413.  Practical   examples    498 

proof   of    probate    499 

414.  Probate  of  wills   502 

415.  Effect  of  probate   502 

4 16.  Foreign   probate 503 

417.  Abstract  of  probate  proceedings    504 

practical   examples    506 

CHAPTER  XXIV. 

LIENS,   CHARGES   AND   INCUMBRANCES. 

418.  Liens    generally     509 

419.  How  created    510 

420.  Operation    and   effect    510 

421.  Method  of  arrangement    510 

422.  Mortgages     511 

423.  Dower    511 

424.  Judgments  and  executions   512 

425.  Judicial   and  execution  sales    512 

42fi.     Lis  pendens  and  attachment   512 

427.  Decedent's    debts 512 

428.  Taxes 513 

429.  Municipal   liens    513 


ANALYSIS    OF    CONTENTS.  XXV 

SEC.  PAGE. 

430.  Official   bonds    513 

431.  Leases 514 

432.  Vendor's   liens 515 

433.  Mechanic's  lien   516 

434.  Priority     517 

435.  Estate    to    which    lien    attaches 517 

-436.     Limitation  of  lien 518 

437.  Assignability     519 

438.  Foreclosure    of    lien 520 

CHAPTER  XXV. 

LIS   PENDENS   AND   ATTACHMENT. 

439.  Doctrine  of  lis  pendens 521 

440.  Kequisites  of  lis  pendens 522 

44 1.  Continued ;    effect   of   dismissal    523 

442.  Notice  lis  pendens 523 

practical  example   524 

443.  Property  drawn  incidentally  in  question 525 

444.  Attachment    525 

445.  Formal  requisites  of  attachment 526 

practical  example    527 

CHAPTER  XXVI. 

JUDGMENTS   AND   DECREES. 

446.  Judgments  and  decrees;    denned  and  distinguished 529 

447.  Operation   and   effect  of  judgments    530 

448.  Lien  of  judgments 530 

449.  Territorial  extent  of  lien   532 

450.  Duration   of   lien 534 

451.  Priority 535 

452.  After-acquired   property 476 

453.  Docketing 537 

454.  Formal  requisites  of  judgments   538 

practical  example    539 

455.  Antecedent  proceedings   540 

456.  Judgments  against  a  deceased  person 541 

457.  Judgments    against    infants    542 

458.  Exemptions    543 

459.  Satisfaction   and   discharge    543 

460.  Decrees   classified   and    distinguished    544 

461.  Operation  and  effect  of  decrees   545 

462.  Decrees   rendered   on   constructive   notice    546 

403.     Lien  of  decrees    547 

464.  Formal   requisites  of  decrees    ' 547 

465.  Abstract  of  decrees .   549 

practical  example    549 


XXVI  ANALYSIS    OF    CONTENTS. 

SEC.  PAGE. 

466.  Errors   and   defects 550 

467.  Continued ;    middle    names    552 

468.  Continued ;  initials ;  idem  sonans  553 

469.  Operation  and  effect  of  probate  decrees    555 

470.  Foreign   judgments   and    decrees    556 

CHAPTER  XXVII. 

JUDICIAL,   AND   EXECUTION    SALES. 

471.  Judicial   and  execution  sales;   denned  and  distinguished    557 

472.  Execution  sales;   validity  and  effect 558 

473.  Title    under    execution   sale    560 

474.  When    the    title    vests     561 

475.  The  writ   561 

476.  The  levy    562 

477.  Notice  of  sale    563 

practical   example    564 

478.  Proof  of  publication   564 

practical  example 564 

479.  Execution  sale  as  affected  by  death 566 

480.  Exemptions 567 

481.  Dower  rights   567 

482.  Judicial    sales;    validity    and    effect    567 

483.  Title  under  judicial  sales 569 

484.  Rights   of   purchaser 570 

485.  Compelling  purchaser  to  take  title   570 

486.  Order  of  confirmation   571 

487.  Effect   of  confirmation    572 

488.  Certificate  of  sale 573 

practical  example ;   by  sheriff   575 

practical  example;  by  master 576 

489.  Assignment   of   certificate    577 

490.  Proof  of  title  under  judicial  and  execution  sales    577 

491.  Continued ;    presumptions 579 

492.  Probate   sales    580 

493.  Nature  and  requisites  of  probate  sales  582 

494.  Abstract  of  probate  sales    584 

practical  example 585 

CHAPTER  XXVIII. 

ACTIONS   AND  PROCEEDINGS. 

495.  Chancery   proceedings    generally    587 

as  affected  by  codes 588 

496.  Authority  and  jurisdiction  of  chancery  courts    588 

497.  Authority   and  jurisdiction  of  probate  courts    589 

498.  Actions   and   proceedings   to   be  noticed 590 

499.  Jurisdiction  the  great  essential 591 


ANALYSIS    OF    CONTENTS.  XXV11 

SEC.  PAGE. 

500.  Notice  afforded  by  chancery  records    592 

501.  Process 593 

502.  Formalities  of  a  summons   594 

503.  Service    596 

504.  Proof  of  service 597 

505.  Affidavit  and  order  of  publication    599 

506.  Appearance  without  process    600 

507.  Master's  and  referee's  reports  601 

508.  Verdicts    I 601 

509.  Abstract  of  chancery  proceedings 602 

practical  example    603 

510.  Injunctions 604 

511.  Ejectment     606 

512.  Quia  timet   608 

513.  Partition     609 

practical    example     611 

514.  Specific  performance    613 

515.  Redemption 615 

516.  Foreclosure    .  . . 616 

enumeration  of  methods 616 

517.  Dower 617 

518.  Divorce   618 

practical    example 621 

519.  Right    of    eminent    domain 622 

520.  Proceedings  for  condemnation  and  assessment 623 

521.  Construction  of  wills    626 

CHAPTER  XXIX. 

TAXES    AND   TAX    TITLES. 

522.  Definition ;  nature  and  scope  of  the  taxing  power   627 

523.  Subjects    of   taxation    628 

524.  Lien  of  taxes    ' 629 

525.  Tax  titles  630 

requisites   and    effect 631 

526.  Nature  of  tax   titles ;    dependent  or  independent    632 

527.  Proceedings  incident  to   taxation    633 

528.  Description  of  land ;  assessor's  plats  633 

529.  Sale  for  non-payment 654 

practical    examples     635 

530.  Forfeitures 636 

•531.     Tax  sales ;  tax  payer  as  purchaser   637 

532.  Rights  of  purchaser    638 

533.  Redemption    639 

534.  Certificate    of    sale 640 

practical  example    645 

535.  Tax   deeds    641 


XXV111  ANALYSIS    OF    CONTENTS. 

SEC.  PAGE. 

536.  Continued;  statutory  modifications  of  common  law  rules   642 

537.  Formal    parts 643 

practical  examples 645 

538.  Effect  of  deed  as  evidence   646 

539.  Tax  deed ;  possession;  limitation 648 

540.  Tax   abstracts    649 

541.  Special  assessments   650 

CHAPTER  XXX. 

DESCENTS. 

542.  Title  by  descent    651 

543.  Nature,  operation  and  incidents   of  title    652 

544.  Inheritance  as  dependent  upon  seizin    653 

545.  Heirship ;    its   rights  and  privileges    654 

546.  The    line   of   succession    654 

547.  General  rule  of  descents   655 

548.  The  right  of  representation    656 

549.  Preferences 656 

550.  Who  may  take  by  descent;  aliens   656 

551.  Continued ;   adoptive  heirs   658 

552.  Ancestral  estates;  half  blood    658 

553.  Surviving   consorts    ." 659 

554.  Coparceners    660 

555.  What  descends    „ 660 

556.  How  affected  by  ancestral  covenants   660 

557.  Liability  for  ancestral  debts 660 

558.  Creditor's    liens     661 

559.  Equitable    conversion 663 

560.  Proof    of   heirship    663 

561.  Proof  of  adoption 665 

562.  Proof    of   death    665 

563.  Continued ;  official  registration 669 

practicable  example    669 

564.  Continued ;   probate  of  death    670 

565.  Proof  of   birth   and   legitimacy    670 

566.  Presumption  of  legitimacy  672 

567.  Validity    of    descents    673 

568.  Abstract  of  descents    674 

example  of  pedigree    675 

569.  Continued ;    probate   proceedings    675 

practical  example   676 

570.  Settlement   without    administration     677 

57 1.  Escheat 678 


ANALYSIS    OF    CONTENTS.  XXIX 

CHAPTER   XXXI. 

ADVERSE    TITLE. 
SEC.  J«AGE. 

572.  Adverse  title,  generally  considered    679 

573.  Adverse  conveyances    679 

practical   examples    681 

574.  Character  of   adverse  possession    682 

575.  Color   of  title    684 

57G.     Adverse  possession  under  color  of  title 686 

577.  Constructive   possession    687 

578.  Adverse  possession  from  user   687 

579.  Naked  possession  without  claim    688 

580.  Tacking 688 

5S1.     Possession  as  notice    689 

582.  Who   may   acquire   adverse   title    689 

583.  Remainder-men     691 

584.  Reversioners 691 

585.  Tenants   in   common    691 

586.  Persons    under    disability    692 

587.  Married   women    693 

588.  Adverse  rights  as  against  the  State    693 

589.  Effect  of  adverse  possession  694 

590.  Proofs  to  support  title  by  adverse  possession   695 

CHAPTER  XXXII. 

OPINIONS    OF    TITLE. 

591.  Perusing   the   abstract 697 

Mr.   Sugden's   views 697 

592.  Note    taking 699 

593.  Examination  of  the  muniments    700 

594.  Examination  of  deeds   702 

595.  Examination   of   legal   proceedings   and   judgments    704 

596.  Marginal   notes    and   requisitions    705 

597.  Continued;  English  and  American  Methods  compared 706 

example  of  requisitions    707 

598.  Answers  to  requisitions    708 

599.  Affidavits  of  pedigree 709 

600.  Analysis   of  title    710 

practical   example    712 

601.  Analytical    chains    713 

practical    example 715 

602.  Sketch  maps    714 

603.  Preservation   of  memoranda 716 

604.  Passing  the  title    718 

005.     What  constitutes  a  valid  title   718 

606.  Flaws    720 

607.  Clouds  upon  title  722 


XXX  ANALYSIS  OF  CONTENTS. 

SEC.  PAGE. 

608.     Inquiries  in  pais 724 

G09.     Continued ;   mechanic's  liens    726 

610.  Continued ;   easements  and  servitudes    726 

611.  Continued ;    homesteads    728 

612.  Printed    copies    728 

613     Framing  opinions   730 

614.  Opinions  of  title    731 

practical  examples    732 

615.  Continued ;    certificates   of  title    734 

616.  Opinions   based   upon  the   abstract 735 

practical  example    737 

617.  Perspicuity   of  expression    740 

618.  Oral    opinions 742 

619.  Liability  for  erroneous  opinions 743 


APPENDIX. 

620.     Conclusion    745 

New    England    abstracts 747 

English  analysis  of  abstract   748 

Tables  of  land  measures , 750 

Spanish-French    land   measures    753 

Spanish-Mexican    land    measures 755 

Texas  land  measures   758 


TABLE  OF  CASES. 


THE    REFERENCE    IS    TO    PAGES. 


Abbot  v.   Wilbur,   46. 

Abbott  v.  Holway,  Adm'r,  279,  280, 

281. 
Abbott   v.   Semple,   598. 
Abbott  v.  Doling,  633,  635,  645. 
Abell  v.  Lathrop,  26. 
Abercrombie  v.  Abercromie,  463. 
Acer  v.   Westcott,   74,   223. 
Actor  v.  Hoyt,  511. 
Adam  v.  Norris,   181. 
Adams  v.  Morse,  224. 
Adams  v.   Buchanan,  342. 
Adams  v.  Jones,  666. 
Adams  v.   Frothingham,  54. 
Adams  v.  Adams,  590. 
Adams  v.  Cowles,  597. 
Adington  v.   Hefner,   451. 
Adrain  ^.  Shaw,  26. 
Aetna  Ins.  Co.  v.  Hesser,  537,  555. 
Agricultural   Ass'n  v.   Neill,   242. 
Agricultural    Society    v.    Paddock, 

316. 
Aiken  v.  R.  R.  Co.,  425. 
Aiken  v.  Morse,  663. 
Akers  v.  Akers,  471. 
Akers  v.  Clark,  467. 
Albee  v.  Ward,  578. 
Alexander  v.  Stewart,   689. 
Alexander  v.  State,   51. 
Allaire  v.  Allaire,  503,  505. 
Allard  v.  Lane,  451. 
Allen  v.  Hawley,  26. 
Allen  v.  Bates,  221. 
Allen  v.  Holton,  271. 
Allen  v.  Sales,  341. 
Allen  v.  Woodruff,  389. 
Allen  v.  Culver,  399. 


Allen  v.  Loring,  515. 

Allen  v.  Morris,  522. 

Allen  v.  Cole,  564. 

Allen  v.  Poole,  661. 

Allen  v.  McGaughey,  559. 

Allen  v.  Smith,  606. 

Allen  v.  Armstrong,  642,  643. 

Alexander   v.    Alexander,    238. 

Alexander  v.  Tolleston  Club,  315, 

Allie  v.   Schmitz,   610. 

Allison  v.  Hunter,   164. 

Allman  v.  Taylor,  568,  570. 

Almy  v.  Hunt,  513. 

Almond  v.  Almond,   525. 

Alt  v.  Banholzer,  621. 

Altes  v.  Hinckler,   630. 

Alton  v.  Transportation  Co.,  263. 

Alton  Ins.  Co.  v.  Buckmaster,  608. 

Allwood  v.  Mansfield,  522. 

Am.  Bible  Society  v.  Sherwood,  315. 

Am.  Emigrant  Co.  v.  Clark,  218. 

Ambrose  v.  Raley,   683. 

Amesti  v.  Castro,  59,  607,  608. 

Amphlet  v.  Hibbard,  436,  438. 

Anderson  v.  McGowan,  363. 

Anderson  v.  Culbert,  438. 

Anderson  v.  Grable,  489. 

Anderson  v.  Donnell,  516. 

Anderson  v.  Arnette,  598. 

Anderson    v.    Tuck,    536. 

Anderson    v.    Kerns    Draining    Co., 

627. 
Annan  v.  Baker,  645,  647. 
Anthony  v.  Bank,  318. 
Apperson  v.  Burgett,  535. 
Applegate  v.  Edwards,  534. 
Aquire  v.  Alexander,  692. 

xxxi 


XXX11 


TABLE    OF    CASES. 


Arbuckle  v.  Ward,  692. 
Armstrong  v.  Ross,  301. 
Armstrong  v.  Lear,  502. 
Arment rout's  Exr.  v.  Gibbons,  428, 

429. 
Arnold   v.   Arnold,   297. 
Arnold   v.    Chesebrough,    672. 
Arnold  v.  Nye,  541. 
Arthur  v.  Anderson,   246. 
Arthur   v.   Cole,  483. 
Arthur   v.    Webster,    210,   309. 
Askew   v.   Dupree,   672. 
Aston  v.  Galloway,  491. 
Astor  v.   Hoyt,   420. 
Astrom  v.  Hammond,  130. 
Atherton  v.  Fowler,  132. 
Atkins    v.    Kinman,    339,    644. 
Atkins  v.  Hinman,  341,  630. 
Atkins  v.  Horde,  607. 
Atlanta    Mills    v.    Mason,    31. 
Atlanta  Dock  Co.   v.  Leavitt,  227. 
Attorney   General   v.   Garrison,   336. 
Attorney  General   v.   Plankroad  Co., 

628. 
Atwood  v.  Wright,  560. 
Augustine  v.   Doud,   567. 
Aultman   v.    Obermeyer,   300. 
Austin   v.   Cambridgeport,  401,  484. 
Austin  v.  Bainter,  602. 
Austin  v.  Wohler,  726. 
Austin   v.   Bailey,   654. 
Austin  v.  Downer,  428. 
Aven  v.  Beckom,  340. 
Avery  v.  Babcock,  538. 
Ayer  v.  Ayer,  477. 
Ayers  v.  Hays,  448,  455. 
Ayling  v.  Kramer,  227. 

Babbit  v.  Bowen,  677. 

Babcock  v.  Jones,  537. 

Bachman  v.  Sepulveda,  549. 

Bacon  v.  Van  Schoonhover,  448. 

Badger  v.  Daniel,  523. 

Bangel  v.  Brodrick,  33,  34,  129,  163, 

164. 
Bailey  v.  Kilburn,  210. 
Bailey  v.  Litten,  304. 
Bailey  v.  Doolittle,  637. 


Bailey  v.  Smith,  448. 

Bailey  v.  Bailey,  336. 

Baird  v.  Wolf,   129,  164. 

Baker  v.  Stewart,  299. 

Baker  v.   Bartlett,  525. 

Baker  v.    Bridge,  481. 

Baker  v.  Chandler,  532. 

Baker  v.  Hale,  688. 

Baker  v.  Hunt,  254. 

Baker  v.   Scott,  470. 

Baker  v.  Swan,  685. 

Baker  v.  Neff,  313,  315. 

Balcum   v.   Wood,   26,   437,  438. 

Baldwin  v.  Sager,  448. 

Baldwin  v.  Pool,  384. 

Bales  v.  Perry,  353. 

Ballou   v.   Lucas,   269. 

Ballame  v.  Forsythe,  637. 

Ballance  v.  Tesson,  169. 

Bank  v.  Abstract  Co.,  15. 

Bank  v.  Mathews,  313. 

Bank  v.  Schott,  321. 

Bank  v.  Sherman,  376. 

Bank  v.  Bankon,  441. 

Bank  v.  Anderson,  448. 

Bank  v.   Stone,   381. 

Bank  v.  Drummond,  428. 

Bank  v.  Clapp,  390,  439. 

Bank  v.  Green,  26. 

Bank  v.  Humphreys,  572. 

Bank   v.    Kortright,   317. 

Bank  v.  Lanaham,  421. 

Bank  v.  Lyons,  26. 

Bank  v.  Rice,  245. 

Bank  v.  Ward,  8,  9,  732,  734,  745. 

Bank  v.  Willis,  368. 

Banker  v.  Caldwell,  7. 

Bankers,  etc.  Co.  v.  Blair,  551. 

Barber  v.  Roarbeck,  25. 

Barber  v.  Harris,  283. 

Barber  v.  Guaranty  Co.,  73. 

Barbour  v.  Mtg.  Co.,  453. 

Barbour  v.  Gates,  242. 

Barclay  v.  Plant,  299. 

Bardsley  v.  Hines,   597. 

Barling  v.  Peters,  572. 

Barheydt   v.   Barheydt,   481. 

Barker  v.  Ry.  Co.,  220. 


TABLE    OF    CASES. 


XXX111 


Barker  v.  Barker,  580,  590. 
Barker  v.  Comins,  502. 
Barker  v.  Dayton,  20. 
Barker  v.  Ins.  Co.,  596. 
Barlow  v.  Stanford,  570. 
Barnard  v.  Campan,  75,  79. 
Barnhizel  v.   Ferrell,  41. 
Barnet  v.  Mendenhall,  26. 
Barnet  v.  Proskauer,  234. 
Barnet  v.  Lachman,  210,  309. 
Barnet   v.   Newark,   404. 
Barney  v.  Keokuk,  57,   186. 
Barney  v.  Little,  83. 
Barrett  v.  Messner,  25. 
Barron  v.  Mullin,  560. 
Barron   v.   Robbins,   608. 
Barry  v.  Gamble,  182. 
Barter  v.   Greenleaf,  216. 
Bartlett  v.  King,  466,  467. 
Barton  v.  Moss,  637. 
Bass  v.  Estill,  80. 
Bassett   v.   Bassett,   216. 
Bassett  v.  Budlong,  260. 
Bassett  v.  Lockhard,  560. 
Batehelder   v.   Keniston,   55. 
Bates  v.   Norcross,   49. 
Bates  v.   Spooner,  545. 
Bates  v.   State  Bank,  551,  555. 
Bates  v.  Shrader,  654. 
Bates  v.  Ableman,  370. 
Bates  v.  Seely,  298. 
Batesville  Inst.  v.  Kauffman,  336. 
Bauer  v.  Gattmanhausen,  89. 
Baugber  v.   Merryman,  428. 
Baxter  v.  Arnold,   199. 
Bayliss  v.  Williams,  216. 
Beacroft  v.  Strawn,  475. 
Beach  v.  Beston,  367. 
Beall  v.  White,  440. 
Beal  v.   Blair,  252. 
Bean  v.  People,  70,  72. 
Bearss  v.  Ford,  420,  427. 
Beatty  v.  Kurtz,  204. 
Beatty  v.  Mason,  682. 
Beatty  v.  Dixon,  589. 
Beaufort  v.  Duncan,  408. 
Becker  v.  Howard,  039. 
Bedell  v.  Shaw,  683. 


Beebe  v.   Morrell,   81. 

Beecher  v.  Hicks,  218,  284. 

Beekman   v.    Frost,   440. 

Beekman  v.  Bingham,  647. 

Belcher    v.    Branch,    363. 

Belden  v.  Meeker,  42,  503,  548. 

Bell   v.   Duncan,    182. 

Bell  v.  Hearne,  143. 

Bell   v.   Boston,   254. 

Bell  v.  Twilight,  271. 

Bell  v.  Humphrey,  463. 

Bell  v.  Simpson,  447. 

Bell  v.  Farmers'  Bank,  238. 

Bell  v.  Longworth,  685. 

Bellows  v.  Todd,   131,   164. 

Belslay  v.  Engle,  219. 

Belt  v.  Abstract  Co.,  71. 

Beman  v.  Green,  387. 

Bemis  v.  Becker,  385. 

Benkert  v.  Jacoby,  477. 

Bennett  v.  Saloman,  449. 

Bennett  v.  State,  554. 

Bennett  v.  Whitman,  590. 

Bennett  v.  Nichols,  589. 

Bennett  v.  McFadden,  589. 

Bennett  v.  Waller,  614. 

Bennett  v.  Williams,  592. 

Benoist  v.  Carondelet,  318. 

Benson  v.  Morrow,   53,   186. 

Benson  v.  Humphreys,  249. 

Bently  v.   Deforest,  278. 

Bergan  v.  Cahill,  462. 

Berger  v.  Bennett,  446. 

Bergman's    Appeal,    553. 

Berlin  v.  Melhorn,  569,  571,  572. 

Bernhart  v.  Brown,  319,  537. 

Berry  v.   Derwart,   220. 

Bertles  v.  Nunan,  297,  298. 

Besore  v.  Dosh,  640. 

Bessemer  v.  People,   594. 

Best  v.  Gholson,  438. 

Bethel  v.  Bethel,  34,  266,  567,  573. 

Betsey  v.  Torrance,  288. 

Betsinger  v.   Chapman,  671. 

Beverly  v.  Brooke,  685. 

Beygeh    v.    Chicago,    565. 

Bicknell  v.  Bicknoll.  389. 

Biedler  v.  Bicdler,  467. 


XXXIV 


TABLE    OF    CASES. 


Biglow  v.  Forest,  66. 
Biglow  v.  Wilson,  526 
Bill  v.  Mason,  516. 
Billings  v.  Stark,  239. 
Binghamton  Bridge  ease,   170. 
Binkert   v.    Wabash   R'y,   634. 
Birdsall  v.  Hewlett,  490,  491. 
Birdsall  v.  Russell,  75,  77. 
Biscoe  v.  Coulter,  643. 
Bishop   v.   O'Connor,   339,   362,   661. 
Bishop  v.  Morgan,  221. 
Bishop  v.  Schneider,  80,  83. 
Bivard  v.   Walker,   238. 
Black  v.  Gregg,  436. 
Blackwell  v.  Barnett,  450. 
Blackburn     v.     Crawford's     Lessee, 

670,  709. 
Blackwood  v.  Van  Vliet,   632. 
Blacklaws  v.  Milne,  663. 
Blair  v.  Osborne,  212. 
Blair  v.  Vanblarcum,  284,  484. 
Blair  v.  Ostrander,  533. 
Blake  v.   Williams,   447. 
Blake  v.  Shaw,  526. 
Blake  v.  Stone,  470. 
Blake  v.  Fish,  213. 
Blakely  v.  Bestor,  644,  647. 
Blagge  v.  Miles,  480. 
Blanchard  v.  Ware,  592. 
Blanchard  v.  Strait,  524. 
Blanchard  v.  Maynard,  463. 
Blanchard  v.  Bissell,  408. 
Blanchard  v.  Brooks,  271,  272. 
Bland  v.  Muncaster,  568. 
Blauvelt   v.   Ackerman,    324. 
Blayton  v.  Merett,  330. 
Bletch  v.   Johnson,  552. 
Bliss  v.  Johnson,  684. 
Blodget  v.  Hitt,  563,  565. 
Blood  v.  Blood,  80. 
Blood  v.  Light,   559. 
Bloomfield    R.    R.    Co.    v.    Burgess, 

551. 
Boardman    v.    Bourne,    643. 
Boardman  v.  Reed,  183. 
Bodine  v.   Arthur,  284. 
Boerum  v.  Schenck,  365,  366. 
Bohn  v.  Barrett's  Exr.,  488. 


Bogardus  v.  Trinity  Ch.,  687. 

Bogert  y.  Elizabeth,  723. 

Bogy  v.  Shoab,  271. 

Bohn  v.  Barrett's  Exrs.  468. 

Bohon  v.  Bohon,  325. 

Bonewits  v.  Wygant,  56. 

Bonnell  v.  Holt,   516. 

Booker  v.  Warrill,  299. 

Boorman  v.   Sunnucks,  56,   197. 

Boon   v.    Pierpont,  432. 

Booth  v.  Cook,  235. 

Booth  v.  Small,  682. 

Boothroyd   v.   Engle,   231. 

Boreel  v.  Lawton,  400. 

Borders  v.  Murphy,  596. 

Borland  v.   Walrath,  237. 

Bostick  v.  Blades,  483. 

Bostwick  v.   Powers,   83. 

Bottineau  v.   Ins.  Co.,  565. 

Botsford  v.  Wilson,  269. 

Botsford  v.  O'Connor,  583,  584,  596, 

Bourland  v.   Peoria,   76. 

Botsford   v.    Wilson,    269. 

Bowden   v.   Henderson,   666. 

Bowers  v.   Oyster,   389. 

Bowers  v.  Kuscher,  134. 

Bowers   v.   Andrews,   251. 

Bowen  v.   Wickersham,   549. 

Bowen  v.  Bond,  581. 

Bowen  v.   Preston,  610. 

Bowen  v.  Bonner,  562. 

Bowen  v.  Thrall,  271. 

Bowin  v.   Sutherland,   598. 

Bowlin  v.  Pearson,  515. 

Bowman  v.  Davis,   340. 

Bowman  v.  Lee,  688. 

Bowman  v.  Thompson,  631. 

Bowman  v.  People,  561. 

Bowman  v.   Cockerill,   644. 

Boyd   v.    Slayback,   238. 

Boylan  v.   Warren,   69,   70. 

Boyland   v.   Boyland,   596. 

Boynton  v.  Hubbard,  325. 

Boynton  v.  Rees,  216. 

Bozza  v.  Rowe,  574. 

Brackett   v.    Gilmore,    641. 

Bradbury   v.    Falmouth,    77. 

Bradford   v.   Howell,   219. 


TABLE    OF    CASES. 


XXXV 


Bradstreet  v.  Clark,  287,  466. 
Bradshaw   v.   Bradshaw,   249. 
Bradshaw  v.  Bradbury,  222. 
Brady  v.  Spruck,  268. 
Brain  v.  Renshaw,  250. 
Bramberry's  appeal,  298. 
Brame  v.  Craig,  25. 
Branch  v.  Lowery,  533. 
Brannan  v.  Brannan,  260. 
Brannan  v.  May,  659. 
Branger  v.  Lucy,  661. 
Brantly  v.   Cheeley,   366. 
Brashear  v.  Connor,  677. 
Brattle  Sq.  Ch.  v.  Grant,  401. 
Bray  v.  Adams,  223. 
Braxton  v.  Bressler,  54. 
Breckenridge  v.   Tood,  213,   240. 
Bree  v.  Bree,  556. 
Brennan  v.  Wilson,  349,  372. 
Brewer  v.  State,  671. 
Brewer  v.  Watson,  69,  70. 
Brewster  v.   Hardy,   279. 
Brewster  v.  Madden,  134. 
Brewton  v.    Watson,   218. 
Brice's    Estate,    671. 
Bridge  v.  Wellington,  218,  266. 
Briggs  v.  Davis,  372. 
Brightman   v.    Brightman,    525. 
Brine  v.  Ins.  Co.,  34. 
Brinkerhoff  v.  Lansing,  605. 
Britton  v.  Lorentz,  370. 
Brock  v.  Frank,  504. 
Brolasky  v.  Furey,  239. 
Bromley  v.  Goodrich,  264. 
Bronson  v.  Kukuk,  129. 
Bronson  v.  Kinzie,  34. 
Brodie  v.  Watkins,  217,  265. 
Brown  v.  Sims,  9. 
Brown  v.  Renshaw,  250. 
Brown  v.  Farran,  257. 
Crown  v.  Atwater,  280. 
Brown   v.    Dean,   427. 
Brown  v.  Goodwin,  523. 
Brown  v.  Pierce.  533. 
Brown  v.  Gilmor,  572. 
Brown  v.  Delaney,  447. 
Brown  v.  Thorndiko,  468. 
Brown  v.  Jewett,  666. 


Brown  v.   Cockerill,   684. 
Brown  v.  Coble,  686. 
Brown   v.   Brown,   264,   483. 
Brown  v.  Smith,  520. 
Brown  v.  Phil.  Bank,  235. 
Brown  v.   Parker,   542,   566,   595. 
Brown  v.  Rose,  695. 
Brown  v.   Thompson,  242. 
Brown  v.  Coal  Oil  Co.,  268. 
Brown  v.  Pforr,  328. 
Brown  v.  Brown,  483. 
Brown    v.    Throckmorton,    133. 
Brown  v.  United  States,  66. 
Brown  v.  Chamberlin,  371. 
Brown  v.  Jackson,  271. 
Brown  v.  Manter,  217,  218. 
Browne  v.  Ferrea,  559. 
Browning  v.  Howard,  570. 
Browning  v.   Harris,  437. 
Brownrield  v.  Wilson,  463,  472. 
Brownfield  v.  Dyer,  596. 
Brookbank  v.  Kernard,  299. 
Brooks  v.  Bruyn,  685,  686,  687. 
Brooks  v.  Rooney,  563. 
Brooks  v.  Curtiss,  31. 
Brooks  v.  Chappel,  590. 
Broome  v.  Momck,  385. 
Bruce  v.  Luke,  49. 
Brunswick  v.  Grossman,  480. 
Brush  v.  Ware,  75. 
Brush  v.  Beecher,  399. 
Bryant  v.   Christian,  478. 
Bryan  v.  Ramirez,  236,  258. 
Bryne  v.  Morehouse,  223. 
Buchau  v.  Hart,  336. 
Buchanan  v.  Curtis,  53. 
Bucher  v.   Wetherby,    148. 
Buck  v.  Collins,  47,   70,  72. 
Buckner  v.  Street,  273. 
Buckingham  v.  Jacques,   37,   659. 
Buckingham   v.   Wesson,   359. 
Buckley  v.  Gray,  746. 
Buckmaster  v.  Ryder,  608. 
Buckner  v.  Street,  273. 
Buffalo  v.  Webster,  405. 
Bull  v.  Willard,   383. 
Bull  v.  Bull,  486. 
Bullock  v.  Battenhousen,  432,  440. 


XXXVI 


TABLE    OF    CASES. 


Bullock  v.   Wilson,  129. 

Bunco  v.  Reed,  566. 

Bunch  v.  Hardy.  284. 

Bundy  v.  Ophir  Iron  Co.,  238. 

Bunker  v.  Green,  242. 

Burch  v.   Carter,   515. 

Burch  v.  Burch,  460. 

Burdens  v.  Amperse,  296. 

Burdick  v.  Wentworth,   130. 

Burdick  v.  Briggs,  129,  621. 

Burgess  v.  Gray,  133. 

Burgett  v.  Paxton,  532. 

Burke  v.  Stokely,  542. 

Burkholder   v.   Cased,   238. 

Burlen  v.  Shannon,  47. 

Burleigh  v.  Clough,  24,  475,  477. 

Burlington    University    v.    Barrett, 

496. 
Burnet  v.  Pratt,  306. 
Burnet  v.  Burnet,  493. 
Burnside  v.  Merrick,  309. 
Burr  v.  Borden,  564. 
Burr  v.  Mueller,   306. 
Burrows  v.  Bailey,  365. 
Burton  v.  LeRoy,  232. 
Burton  v.  Tuite,   72,   73. 
Burtners  v.  Keran,  48. 
Burwell  v.  Jackson,  390. 
Busch  v.  Donohue,  133,  170. 
Buseh  v.  Huston,  637. 
Bush  v.  Scott,  543. 
Bush  v.  Stevens,  216. 
Bussey  v.  Hardin,  572. 
Bushnell  v.  Harford,  605. 
Bustamete  v.  Bescher,  598. 
Butcher   v.   Rogers,   217. 
Butler's  Appeal,  629. 
Butler  v.  Lee,  545. 
Butler  v.  Haynes,  562. 
Butler  v.  Fitzgerald,  567. 
Butler  v.   Roys,  306. 
Butler    v.    Huestis,    219,    462,    463, 

472. 
Butterfield  v.   Haskins,   476,  477. 
Butterworth   v.    Crawford,    727. 
Button  v.  Am.  Tract  Society,  487. 
Button  v.    Schroyer,    384. 


Byars  v.   Spencer,   238. 
Byrne   v.   Roberts,   597. 

C.  P.  R.  R.  Co.  v.  Beal,  249. 
Caal  v.  Higgins,  21,  719. 
Cabeen  v.   Breckenridge,  7G. 
Cable's  Appeal,  488,  491. 
Caday  v.  Purser,  79. 
Caday  v.  Eighmey,   135. 
Cady  v.  Shepard,  309. 
Cahill  v.  Palmer,  682,  683. 
Cahoon  v.  Coe,  634. 
Calanan  v.   Hurley,   643. 
Calcord  v.  Alexander,  251. 
Calder   v.    Chapman,   103. 
Caldwell   v.   Caldwell,   463. 
Caldwell  v.  Laminer,    519. 
Calhoun  v.   Cook,  682. 
Callins    v.    Lavelle,    21S,    250,    263, 

283. 
Callanan  v.  Votruba,   537,  538. 
Callaway  v.  Fash,  236,  259. 
Calumet  Co.  v.  Russell,  234,  254. 
Cambridge  Bank  v.  Delano,  74,  76. 
Cameron   v.    Supervisors,   63. 
Cameron   v.   Logan,   560. 
Camp  v.  Smith,    135. 
Camp  v.  Bates,    605. 
Campbell  v.  Gas   Co.,  54. 
Campbell   v.  Johnson,   252. 
Campbell  v.  Campbell,   292,  459. 
Campbell  v.  McCahn,    591. 
Campbell  v.  Hall,  607. 
Campbell  v.  Ware,    659. 
Campbell  v.  Wiggins,   468. 
Campbell  v.  Wilson,    671. 
Canal  Commissioners  v.  People,  57. 
Canfield   v.   Bostwick,   461. 
Cannon  v.  Brame,  545. 
Cappock  v.  Smith,  417. 
Capehart   v.   Dowery,   569,   571. 
Carbine  v.  Morris,  341. 
Carbine  v.  Pringle,  75. 
Cardell  v.  Ryder,  299. 
Carhart  v.  Harshaw,  26. 
Cary  v.  Whitney,  3S4. 
Carey  v.  Rae,  30,  31. 


TABLE    OF    CASES. 


XXXV 11 


Carlisle  v.  United  States,  20. 
Carman  v.  Johnson,   126. 
Carow,  In  re,  375. 
Carpenter  v.  Snelling,   242. 
Carpenter  v.  Underwood,    370. 
Carpenter  v.  Dexter,    254. 
Carpenter  v.  Sherfy,   340,   538. 
Carpenter  v.  Browning,    464. 
Carpenter  v.  Bowen,  420,  511. 
Carpenter  v.  Mitchell,    515. 
Carpenter  v.  Denoon,  691. 
Carpentier   v.    Williamson,    268. 
Carr  v.  Rising,  26. 
Carr  v.  Ellison,   399. 
Carr  v.  Carr,  426. 
Carrington      v.      Manning's     Heirs, 

499. 
Carroll  v.  Safford,   130. 
Carroll  v.  E.   St.  Louis,   310. 
Carroll  v.  Carroll,  503,  505. 
Carroll  v.  Gillion,  682. 
Carson  v.  Murray,  28. 
Carter  v.  Day,  611. 
Carter  v.  Hawkins,  75. 
Carter  v.  Rodewold,  599. 
Carter  v.  Wise,  268. 
Carver  v.  Louthain,  274. 
Cary  v.  Whitney,  384. 
Case  v.  Codding,  292. 
Casebolt  v.  Donaldson,  25. 
Cassell  v.  Cook,  257. 
Cate  v.  Craynor,  464,  474. 
Catlin  v.  Ware,  217. 
Catlino  v.  Decker,  690. 
Cavanaugh    v.    Peterson,    441. 
Cemetery  v.  R.  R.  Co.,  63. 
Chadbourne  v.  Mason,  562. 
Challis  v.  R.  R.  Co.,  64,  623. 
Challefoux   v.    Ducharme,   46,   59, 

129,  156,  169. 
Chambers  Re  73. 
Chambers  v.  Jones,  360. 
Chambers  v.  St.  Louis,  277. 
Chambers  v.  Cox,  438. 
Chamberlain  v.  Bell,  76. 
Champaign   v.   Harmon,   314. 
Champlin  v.  Haight,  350. 
Chandler  v.  Chandler,  279. 


Chandler  v.  Spear,  630,  643. 
Chandler  v.  Cheney,  297. 
Chapin  v.  Gilbert,  488. 
Chapin  v.  Curtenius,  364. 
Chapman  v.  Lee,  13. 
Chapman  v.  Templeton,  649. 
Charles    River    Bridge    v.     Warren 

Bridge,  622. 
Charles  v.  Waugh,  630,  634. 
Chartiers    Etc.    Co.    v.    McNamara, 

242. 
Chase  v.  Ross,   363. 
Chase  v.   Heaney,   8,   745. 
Chase  v.   Whiting,   340. 
Chase  v.  Peck,  389. 
Chase  v.  Chase,  620. 
Chatard  v.  Pope,   128. 
Chatham  v.  Bradford,  83. 
Cheever  v.  Perley,  450. 
Cheney  v.  Cook,  614. 
Chicago  v.  Vulcan  Iron  Works,  288. 
Chicago  v.  Larned,  62,  628. 
Chicago,  etc.,  R.  R.  Co.  v.  Joliet,  58. 
Chicago,  etc.,  R.  R.  v.  Kennedy,  74. 
Childs  v.  Lanterman,  543. 
Chiles  v.   Conley's  Heirs,   218. 
Chiniquy   v.    Catholic    Bishop,    247, 

258,  606. 
Chope  v.  Lorman,  47. 
Chouteau  v.   Eckhart,    168. 
Christian  v.  Newberry,  42fi. 
Christie  v.  Gage,  691. 
Christy  v.  Dana,  136. 
Christy  v.   Fisher,   637. 
Chubb    v.    Johnson,    35. 
Church  v.  Gilraan,  177. 
Church   v.   Furniss,   599. 
Church   v.   Smith,   384. 
Church   v.   Hoboken,   58. 
Church   v.   Grossman^   538. 
Churchill  v.   Reamer,   263. 
Cincinnati  v.  White,  58. 
Clader  v.   Thomas,   79. 
Claflin  v.  Dunne,   542. 
Clagett   v.    Conlee,    685. 
Claiborne    v.    Holmes,    80. 
Clapp  v.  Stoughton,  484. 
Clapp  v.  Bromagham,  692, 


XXXV111 


TABLE    OF    CASES. 


Clark  v.  Doorman's  Ex'rs,  470. 

Clark  v.   Conner,   643. 

Clark  v.   Bosworth,   725. 

Clark  v.  Tennison,  475,  483. 

Clark  v.  Marshall,  8,  745. 

Clark  v.   Graham,   34,   217,   327. 

Clark  v.  Baker,  48,  49,  136,  439. 

Clark  v.  Collidge,  50. 

Clark  v.  Wethy,  222. 

Clark  v.  Hillis,  547. 

Clr.:k    v.    Thompson,    583. 

Clark   v.   Hall,    130. 

Clark  v.   Clark,   298,   348. 

Clark  v.   Manfg.   Co.,   318. 

Clark  v.   Sawyer,   341. 

Clark   v.   Henry,    427. 

Clark  v.  Martin,  227,  286. 

Clarke  v.   Clarke,  348. 

Clarke  v.  Bowan,  634. 

Clark   v.    Boorman's   Ex'rs,   470. 

Clark  v.   Huges,   691. 

Clarkson    v.    Stinchfield,    607. 

Claunch  v.  Allen,  273. 

Clayton    v.    Wardell,    671. 

Clements   v.   Lamkin,   682. 

Clery  v.  Hinman,  636. 

Close  v.  Samm,  686. 

Coal   Co.  v.  Barber,  536. 

Coats  v.  Taft,   220,  251. 

Cobble   v.   Tomlinson,   309. 

Cobum  v.   Ames,    186. 

Coburn  v.   Ellenwood,   171. 

Cockerel   v.    Coleman,   654. 

Coffee   v.   Sibj.il,   579. 

Cofin  v.  Taylor,  449. 

Cofran  v.  Cofran,  362. 

Cohea    v.    Nemingway,    359. 

Cohen  .v.  Shard,  723. 

Colby  v.   McOmber,  257. 

Cole  v.  Kimball,  229. 

Coles  v.  Withers,  429. 

Colesburg  v.  Dart,  328. 

C>leman  v.   Allen,   133. 

Coleman  v.  E.  R.  Co..  311. 

Coleman   v.    Billings,    686. 

Coleman   v.   Improvement    Co.,    221, 

223. 
Coleman   v.   McAnulty,   542. 


Collame   v.   Langdon,   422. 
Collins  v.   Bartlett,   175. 
Collins    v.    Marcy,    286. 
Collins   v.   Warren,   309. 
Collins  v.   Megraw,   518. 
Collins    v.    Collina,    608. 
Collins  v.  Lynch,  693. 
Collamore  v.   Wilder,   663. 
Collier,  v.  Va   »n,  564. 
Collier  v.   Grimsey,  477. 
Collier's  Case,  481. 
Colson   v.   Thompson,   614. 
Comer  v.   Baldwin,   238. 
Commonwealth  v.  Alger,   19,  20. 
Commonwealth   v.  Jackson,   238. 
Commonwealth   v.   Andre,    51. 
Commonwealth  v.  Stump,  671. 
Commissioners    v.    Rush,    205. 
Commissioners       v.       Brackenridge, 

629. 
Comstock    v.    Crawford,   42. 
Comstoek  v.   Smith,  268,   271. 
Conboy  v.  Iowa  City,  404. 
Congregational     Society     v.     Stark, 

315. 
Conklin   v.    Foster,    567. 
Conn.   Ins.   Co.   v.   Smith,   313. 
Connard  v.   Colgan,  238. 
Connor    v.    Banks,    447. 
Connor  v.   Whitmore,  449. 
Conover   v.    Musgrave,    573. 
Conover   v.   Warren,   510. 
Conrad   v.   Ins   Co.,   531. 
Conroy  v.   Perry,   519. 
Cook   v.   Sinnamon,   247. 
Cook  v.  So.  Pk.  Com'rs,  63. 
Cook  v.   Barr,   334,   335. 
Cook  v.  Clark,  435. 
Cook  v.  Holmes,  466,  481. 
Cooley  v.    Scarlett,    548. 
Coolidge  v.  Learned.   53. 
Coons    v.    Throckmorton,    597. 
Cooper   v.   Ord,   32,   685. 
Cooper    v.    Reynolds,    592. 
Cooper  v.  Wilder,   142. 
Cooper  v.   Roberts,    148,   158. 
Cooper  v.  McBride,   688. 
Cooper  v.  Cooper,  298,  666. 


TABLE    OF    CASES. 


XXXIX 


Corbin  v.  Healy,  224. 

Corbin   v.    Sullivan,    79. 

Corbitt  v.  Timmerman,  601. 

Corfield  v.   Corgell,  658. 

Cormack  v.  Wclcott,   70,   72. 

Corning  v.  Trey  Factory,  688. 

Corning  v.  Gould,   61. 

Corning  v.  Troy,  etc.,  Factory,  604. 

Cory. '  i   v.   Merritt,   360. 

Cor  with  v.  Bank,  562. 

Cos  v.  Estes,   242. 

Cost  v.  Rose,  596. 

Costigan  v.  Gould,  213. 

Costly  v.  Driver,  595. 

Coursey  v.  Davis,  284. 

Cover  v.  Manaw  ay,   256. 

Covenhoven  v.  Shuler,  466. 

Covington  v.   Ctewart,  694. 

Cowan  v.   Foster,  581. 

.Cowell    v.    Col.    Springs    Co.,    227, 

286. 
Cowles  v.  Rickett,  367. 
Cowles  v.  TIarble,  419,  422. 
Cowley   v.    x'ulsifer,    74. 
Cowl  v.  Varnum,   516. 
Cox  v.   Stein,   237. 
£'o~   v.   James,    199. 
Cox  v.  Cox,  C56. 
fOoS  v.  Ealsted,  564. 
Coyce  v.  Stovell,  537. 
Coyc  v.  Leach,   668. 
Craddock   v.   Stewart's   Adm'r,   340. 
Craig   v.    Radford,    657. 
Craig  v.   Leslie,   490. 
Craig  v.  Dimock,  242. 
Craig    v.    Swinerton,    518. 
Craig   v.   R.   R.    Co.,   63. 
Craig  v.   Wells,   287. 
Cram  v.   Cotting,   631. 
Cramer's   Appeal,   37,   659. 
Crane  v.  Reeder,  288. 
Crane   v.   Turner,   449. 
Cranston   v.   Crane,  445. 
Crary   v.   Goodman,    684,   687. 
Crawford  v.  Richeson,  514. 
Crawford   v.   Spencer,   211. 
Credle  v.  Hays,  221,  223. 
Crispon  v.  Hannavan,  32,  684,  687. 


Crittenden  v.  Fairchild,   352. 

Crittenden  v.  Leitensdorfer,  561. 

Croade    v.    Ingraham,    28. 

Crockett  v.  McGuire,  75. 

Crocker   v.   Pierce,   526. 

Crocker  v.   Callangee,  264. 

Croft  v.  Bunster,  216,  420,  447. 

Croker  v.  Gilbert,  216. 

Cromwell  v.  Ins.  Co.,   388. 

Cronise  v.  Hardfc,  359. 

Crooker   v.   Crooker,   84. 

Crooke  v.  Andrews,  722. 

Crook   v.    Lunsford,    26. 

Crosby  v.   Dowd,   556. 

Crosby    v.    Parker,    249. 

Cross   v.   Cross,   672. 

Crouse   v.   Murphy,   553. 

Crowell  v.  Johnson,  573. 

Cruger  v.  LUilliday,   337. 

Crump   v.    Faucett,   656. 

Cryder's   Appeal,   350. 

Cuendet   v.   Lohmer,   368. 

Culver  v.  Phelps,  595. 

Cummings  v.  Rogers,  392. 
Cummings  v.  Cummings,  580. 
Cummings  v.  Plummer,  472. 
Cunningham  v.  Pattee,   75. 
Cunningham    v.    McCollum,    344. 
Cunningham  v.  Curtis,  221. 
Cunningham  v.  Ashley,   130. 
Curd   v.   Lackland,    559. 
Curren  v.  Taylor,   37,   659. 
Curry  v.   Hinman,   595. 
Curry  v.  Spencer,  627. 
Curtis   v.   Hunting,    179. 
Curtis   v.   Flynn,   432. 
Curtis  v.  Root,  536,  571. 
Curtis  v.   Smith,   336,   348,  638. 
Curtis  v.  Lyman,  83. 
Cushaman   v.   Glover,    330. 
Cutler  v.  Davenport,  372,  449. 
Cutler  v.   Tufts,  260. 
Cutright  v.   Stanford,   661. 

D'Armond   v.   Dubose,   242. 
Dailey   v.   Litchfield,   13. 
Dale  v.  Lincoln,  211,  239. 
Dale  v.  Shively,  229. 


xl 


TABLK    OF    CASES. 


Dalton  v.  Lamburth,   605. 

Dalton  v.  Lucas,  647,   648,  649. 

Damon  v.  Bibben,  474. 

Danforth  v.  Lowry,  332. 

Daniel   v.   Purvis,    169. 

Daniel   v.  Leitch,  291. 

Daniel   v.  Hodges,   525. 

Daniel  v.  Whartenby,  469. 

Darst   v.   Bates,   213. 

Dart  v.   Woodhouse,    14. 

Dartmouth    College    v.    Woodward, 

170. 
Davenport  v.  Whistler,  238,  383. 
Davenport  v.   Young,   359. 
Dadidson  v.   Secrist,   15. 
Davidson  v.  Seegar,  723. 
Davidson  v.  Van  Pelt,  390,  719. 
Davie    v.    Briggs,    666. 
Davis    v.    Hollingsworth,    210. 
Davis  v.   Burton,   233. 
Davis  v.  P.  R.  Co.,  321. 
Davis  v.   Steeps,  537,   553. 
Davis   v.   McDonald,   304. 
Davis  v.  Savings  Bank,  330. 
Davis  v.   Alvord,  517,  519. 
Davis  v.  Life  Ins.  Co.,  523. 
Davis   v.   Hamilton,   428,   535. 
Davis  v.  Ransom,  562. 
Davis  v.  Henderson,  390,  719. 
Davis'   Heirs   v.    Taul,   490. 
Day   v.   Brenton,   453. 
Day   v.   Wilder,   689. 
Day  v.   Micon,   66. 
Dayton  v.  Corser,  567. 
Dayton   v.   Mintzer,   580,   581. 
De   Camp  v.   Dobbins,  313. 
De  Graw  v.  King,  235. 
De  Wolf  v.  Hayden,  49,  270. 
Dean  v.   Bittner,   16S,   169. 
Deerfield   v.   Arms,   54,  55. 
Deford    v.    Deford,   461. 
Deininger  v.  McConnell,  232,  239. 
De  Kay  v.  Irving,  463. 
Delancy  v.  Ganong,  399. 
Delaney   v.   Brunette,   450. 
Delano   v.   Bennett,   449. 
Delaunay  v.   Burnett,   134 
De  Laureal  v.  Kemper,  455. 


Delevan   v.   Duncan,    390,    391,    719. 

Dement   v.  Thompson,  562. 

Dennett  v.  Dennett,  472. 

Den  v.  Taylor,  341. 

Den  v.   Messenger,  481. 

Den   v.   Troutman,  452. 

Den  v.  Despreaux,  341. 

Dennis  v.  Maynard,  513. 

De  Pauw  v.  New  Albany,  627. 

Dequindre  v.  Williams,  52. 

Dew   v.    Dellinger,    384. 

Dewey  v.  McLain,  66. 

Devries    v.    Haywood,    50. 

Dexter   v.  Manley,  400. 

Deyer  v.   Homer,   289. 

Dibrell   v.   Carlisle,   545. 

Dickie   v.   Abstract   Co.,   9. 

Dickenson  v.  Breedan,  648. 

Dickson  v.   Randal,   299. 

Dickson   v.   Rawson,   367. 

Dickson  v.   Todd,   522. 

Dickins  v.  Barnes,  251. 

Dikes  v.  Miller,  61. 

Dill  v.  Wisner,  490. 

Dills  v.   Jasper,   571. 

Dills  v.  Hubbard,  687. 

Dillman  v.   Hoffman,   30,   727. 

Dillon   v.   Brown,   309. 

Dillingham  v.  Fisher,   132. 

Dillingham  v.  Brown,  649. 

Dingley  v.  Bank,  428. 

Dingley  v.  Boston,  64. 

Dingman  v.  People,   170. 

Dinkins  v.   Bowers,  516,  519. 

Disque  v.  Wright,  432,  440. 

Diversy  v.  Johnson,  585. 

Dix  v.  Palmer,  598. 

Dixon    v.    Dixon.    532. 

Dixon    v.    Merritt,    48. 

Dixon  v.  Cook,  682,  683. 

Dobbins  v.   Wilson,   531. 

Dodd  v.  Williams,  49,  102,  103,  734, 

743. 
Dodge   v.    Hopkins,    329 
Dodge  v.  Beeler,   656,  659. 
Dodge's    Appeal,    659. 
Doe  v.  Hardy,  358. 
Doe   v.    Governeur,   657. 


TABLE    OF    CASES. 


xli 


Doe  v.  Jackson,  364. 

Doe  v.  Eslava,  687. 

Dogan  v.   Griffin,   631. 

Dolde  v.  Vodicka,  199. 

Dole  v.  Thurlow,  233,  236. 

Donaldson  v.  Holmes,  518. 

Donaldson    v.    Hibner,   50. 

Donahue  v.   Chase,   357. 

Donnelly  v.  Turner,  414. 

Donlin   v.   Hettinger,    585. 

Doolan  v.  Carr,   176. 

Dooly  v.  Walcott,  77. 

Doolittle   v.    Jenkins,   516. 

Doran  v.  Mullen,  231. 

Dorr   v.   Harrahan,   227. 

Dorland  v.  Magilton,   690. 

Dorsey  v.   Kendall,   568. 

Dorsey   v.   R.    R.   Co.,   413. 

Douglass  v.  Blackford,  464. 

Douglass   v.   Dangerfield,    637. 

Durette   v.    Briggs,    340. 

Douseman  v.   Hooe,    169,   548. 

Douthitt   v.    Stinson,   208,   210. 

Dow   v.   Lewis,   218. 

Dow  v.  Dow,  460. 

Dow  v.  McKennedy,  605. 

Downer  v.  R.  R.  Co.,  58. 

Downey   v.   Borden,  477. 

Downing  v.  Marshall,  351. 

Drake   v.   Kinsell,   25. 

Drayton  v.  Marshall,  420. 

Draper   v.    Bryson,    343. 

Dressel   v.    Jordan,   256. 

Drew   v.   Smith,   222. 

Drusadow  v.  Wilde,  477. 

Dryden  v.  Hanway,  292. 

Dublin  v.   Chadbourn,   503. 

Ducat   v.    Chicago,    310. 

Ducker  v.  Burnham,  492,  532. 

Dudley   v.   Sumner,   395. 

Duff  v.  Beauchamp,  298. 

Duffy  v.  Hobson,   242. 

Dugan  v.  Follett,  593,  691. 

Duncan  v.   Duncan,   072. 

Dundee  Mtg.  Co.  v.  Huges,  8,  743, 

745. 
Dunklin   v.   Wilson,  545. 
Dunklee  v.  Crane,  517,  726. 


Dugan    v.    Follett,    570. 

Dunlap    v.    Gallatin    Co.,    513,    630, 

6.31,   634. 
Dunlap  v.   Bullard,   402. 
Dunlap   v.   Dunlap,   289,   461. 
Dunleith  v.  Reynolds,  628. 
Dunn  v.  Ketchum,  416. 
Dunn  v.  Snell,  637. 
Dunn  v.  Gaines,  244. 
Dunning  v.   Ocean  Nat.  Bank,   363. 
Dunning   v.   Van   Dusen,    479,    480, 

701. 
Duplessis   v.   Kennedy,   667. 
Dupont  v.  Davis,  221. 
Dupuy    v.    Leavenworth,    309. 
Durant  v.  Comegys,  538. 
Durett  v.  Briggs,  340. 
Durfree   v.    Pavitt,   292. 
Durham  v.  Heaton,  566. 
Duryea  v.  New  York,  198. 
Dutton   v.    Simmons,   552. 
Dwight  v.  Overton,  372. 
Dwight  v.  Packard,  220. 
Dyer  v.  Clark,  309. 

Eames  v.  Turnverein,  547-. 
Earl  v.  Rowe,  477. 
Easterly  v.   Goodwin,   596. 
Eastman  v.   Porter,   530,   545. 
Eaton  v.  Trowbridge,   240. 
Eaton   v.    Simmonds,    291. 
Eaton  v.  Bryan,  663. 
Eaton  v.  Ryan,   559. 
Eaton   v.    White,   573. 
Edgerton  v.  Bird,  32,  685. 
Edwards  v.   Bibb,  463,   472. 
Edwards  v.   Rays,  288. 
Edwards  v.  Ralley,   176. 
Edwards  v.  Thompson,  725. 
Edwards   v.   Trumbull,   427. 
Edwards    v.    Barnard,    469. 
Eidenmiller  v.  Wyandotte  City,  63. 
Eiden  v.  Eiden,  609. 
Eiseley  v.   Spooner,  218. 
Eisenmenger   v.   Murphy,   543. 
Egery  v.   Woodard,   238. 
Eldridge  v.  Pierce,  25. 
Eldred  v.  Sexton,  131. 


xlii 


TABLE    OF    CASES. 


Elder  v.  Derby,  424. 

Elmdorf  v.   Lockwood,   27,   29,   305. 

Ellis  v.  E.  R.  Co.,  443. 

Elliott   v.    Sleeper,    245. 

Elliott    v.    Armstrong,    334. 

Elliott  v.  Wood,  445. 

Elliott   v.   Morris,   334. 

Elliott  v.  Pearle,  686. 

Ellison  v.   Wilson,   74. 

Ellison   v.   Daniels,  449. 

Ellsworth   v.   R.   R.,   239. 

Ellwell   v.   Shaw,   326. 

Ely  v.  Wilcox,  102,  103. 

Emmerson   v.   White,   664. 

Emmison  v.  Whitlesey,  484. 

Emory  v.  Keighan,  450. 

Enfield  v.  Permit,  51. 

Equitable  Trust  Co.  v.  Fisher,  443. 

Errissmann  v.  Errissmann,  619. 

Erskine  v.  Davis,  244. 

Eshelman's  Estate,  656. 

Espy   v.   Anderson,    13. 

Ethell  v.  Nichols,  583. 

Evans  v.  Davis,  563. 

Evans  v.  Ashley,   344,  549,  573. 

Evans  v.   Edwards,  216. 

Evans  v.  Hudson,  466. 

Evertson  v.  Sawyer,  561,  574. 

Ewins  v.   Gordon,   387,  393. 

Fairman  v.  Beal,  478. 
Falkner  v.  Guild,  581. 
Fallon    v.     Clindester,    503. 
Faloon  v.  Simshauser,  283. 
Fannin  Co.  v.  Riddle,  51. 
Farrington  v.  Wilson,  581. 
Fairman  v.  Beal,  478. 
Faris  v.  Dunn,  334. 
Parish  v.  Coon,  185,  687. 
Farish  v.  Cook,  474,  475. 
Farmers'   Bank   v.   Haight,   232. 
Farmers'  Bank  v.  Merchant,  512. 
Farmers'  Bank  v.  Peters,  571. 
Farnham  v.  Hildreth,   550,   551. 
Farnsworth    v.    Cole,    617. 
Farnum   v.    Peterson,    288. 
Farrington  v.  Wilson,  581. 
Farwell  v.  Rogers,  288. 


Fast  v.  McPherson,   334. 
Faulke  v.   Bond,   692. 
Fearing  v.   Swift,  469. 
Feaster  v.  Fleming,  561. 
Fehrle  v.  Turner,  605. 
Feit  v.   Vannata,  472. 
Felino  v.  Lumber  Co.,  435. 
Fell    v.    Young,    240,    360. 
Fellows  v.  Heermans,  333. 
Feltman  v.  Butts,  463. 
Fenn   v.   Holmes,   33,    182. 
Fenner   v.    Tucker,    564. 
Fenton  v.   Reed,  671. 
Fergus  v.  Woodward,  561, 
Fergusen   v.   Miles,   343. 
Fergusen   v.   Jones,   665. 
Fergusen  v.   Crawford,   541. 
Fergusen   v.    Scott,    662. 
Ferris  v.  Crow,   595. 
Ferry's   Appeal,   463. 
Fetrow  v.  Merriweather,  216. 
Fiege  v.   Garvey,   26. 
Field    v.    Seabury,    169. 
Final  v.   Backus,   257. 
Finley  v.  Brown,  644. 
Finley  v.   Steele,   265. 
Finley  v.   Boyd,   530. 
Fire  Ins.  Co.  v.  Doll,  327. 
Fire  Ins.  Co.  v.  Loomis,  574. 
Fischer  v.  Eslaman,  306,  341. 
Fisher  v.  Fields,  23,  333. 
Fisher  v.   Hall,   238. 
Fisher  v.  Forbes,  292. 
Fisher  v.  Provin,  297. 
Fisher    v.    Beckwith,    237. 
Fisher  v.  Butcher,  239,  254. 
Fish  v.  Lightner,  530,  545. 
Fishback  v.  Weaver,  546,  570. 
Fisk   v.    Flores,    223,    340. 
Fiske  v.  Kellogg,  583,  584. 
Fiske  v.   Tolman,   289. 
Fissler's  Appeal,  593. 
Fitch   v.   Boyer,    578,    579. 
Firth   v.  Lawrence,   415. 
Fitzgerald  v.  Spain,  637. 
Fitzgerald  v.   Glancy,   662. 
Fitzgibbon  v.  Lake,   364. 
Fitzhugh  v.  Maxwell,  384. 


TABLE    OF   CASES. 


xliii 


Fleming   v.   McHale,   292. 
Fleming  v.  Johnson,  570. 
Flemming  v.  Griswold,  693. 
Fletcher  v.  Tyler,  284. 
Fletcher  v.   Holmes,   420,   43G,  437, 

438,   511. 
Fletcher  v.  Peck,  60. 
Flinn  v.  Owen,   672. 
Flint  v.  Clinton  Co.,  317,  409. 
Florence   v.   Hopkins,   692. 
Florence  v.  Paschal,  723. 
Flowery    Mining     Co.     v.     Bonanza 

Co.,  232. 
Floyd    v.    Herring,    360. 
Fogal    v.    Perro,    691. 
Fogg   v.   Clark,   473. 
Foley  v.  Harrison,  156. 
Foley   v.   McDonald,   360,   585. 
Foltz    v.   Prouse,    654. 
Fonda   v.   Sage,   723. 
Fontaine  v.   Savings  Bank,  239. 
Fotte  v.  Bryant,  292. 
Forbes  v.   Scannell,   371. 
Ford  v.  Unity  Church,  102,  103. 
Ford  v.  Wilson,  686. 
Ford   v.   Doyle,   551. 
Ford   v.    Marshall,    691. 
Forsyth    v.    Preer,    438. 
Forsyth    v.    Small,    57. 
Forrest  v.  Jackson,   219. 
Foshier   v.   Narver,   551. 
Foster  v.  Shreve,  219. 
Foster     v.     Richard     Busteed,     530, 

545. 
Foster  v.  Waterman,  635. 
Foster   v.   Evans,   607. 
Foster    v.    Young,   48. 
Fouby    v.    Fouby,    216. 
Foulks    v.    Pegg,    526. 
Fowle  v.  Merrill,   357. 
Fowler  v.  Shearer,  326. 
Fowler    v.    Merrill,    357. 
Fowler   v.   Doyle,   539. 
Fox-  v.  Phelps,  431. 
Fox  v.  Turtle,   565,  566. 
Fox   v.   Burke,   36. 
Frakes  v.   Brown,  620. 
Frazer  v.  Peoria  Co.,  284,  484. 


Frazer  v.  Lee,  366. 
Frazer   v.    Thatcher,    532. 
Frances'   Estate,  463,   472. 
France-Texan   Land    Co.    v.   McCor- 

mick,  311,  321,  322. 
Franklin  Co.  v.  Savings  Inst.,  313. 
Franklin  v.   Talmadge,   244. 
Franklyn  v.  Hayward,  425. 
Fratt   v.   Woodward,    222. 
Frederick   v.  Haas,   292. 
Frederick    v.    Pacquette,    580. 
Freedman  v.  Goodwin,  185. 
Fremont    v.    Flower,    180. 
French  v.   Crosby,   28. 
French    v.    Wade,    66. 
French  v.  Edwards,  340. 
French  v.  Burns,  421. 
Frink  v.  Darst,   270. 
Frink  v.  Le  Roy,  425. 
Frisbie  v.  Whitney,   133. 
Froneberger  v.  Lewis,  366. 
Frost   v.    Beekman,    76,    79. 
Frost  v.  Deering,  304. 
Frost  v    Bank,  560. 
Fugate    v.    Pierce,    683,    684,    686, 

688. 
Fuller  v.  Eddy,  420. 
Fuller   v.   Shedd,   648. 
Fuller  v.   Carr,   252. 
Fuller  v.  Jillett,  229. 
Fuller   v.    Fellows,    252. 
Fulton  v.  Hill,  466. 
Fulton  v.  Moore,  574. 
Funk   v.    Eggleston,    479,    481,   492, 

701. 
Furgeson   v.   Jones,   665. 
Furgusen  v.  Mason,  279. 
Furnas   v.   Durgin,   290. 

G.  B.  &  M.  C.  Co.  v.  Groat,  339. 
Gadberry  v.   Sheppard,  287. 
Gage  v.  Reid,   648. 
Gage  v.  Schroder,  586. 
Gaines  v.   Hale,    130. 
Gairity   v.   Russoll,   605. 
Galaway  v.  Malchou,  440. 
Gale   v.   Kinzie,   54,    56. 
Gale  v.  Wilson,  290. 


xliv 


TABLE    OF    CASES. 


Gallagher's  Appeal,  491. 
Galaway   v.   Malchon,   432. 
Galloway    v.    Finley,    182. 
Galpin   v.   Abbott,   80. 
Galpin   v.   Page,   541,   GOO. 
Gait  v.   Galloway,    182. 
Gammon  v.   Hodges,   81. 
Gambert  v.  Hart,   743,   744. 
Gans  v.  Renshaw,  719. 
Gardener  v.  Moore,  436. 
Gardiner  v.  Miller,  53,  693. 
Gardner    v.    Com.    Nat.    Bk.,    369, 

372. 
Gardner  v.  Jaques,  344. 
Gardner  v.  Eberhart,  341,  574,  577. 
Gardner   v.    Grannis,    240. 
Gardner   v.    Gardner,    350. 
Gardner  v.  Heyer,  4S7. 
Garland  v.  Britton,  594. 
Garner   v.   Jones,   297. 
Garnett  v.   Garnett,  208. 
Garnsey   v.    Rogers,   291,   435. 
Garret  v.  Moss,  209. 
Garrett  v.  Lynch,  558. 
Garrison   v.   Rudd,   412. 
Gas  Co.  v.  San  Francisco,  408. 
Gashwiler    v.    Willis,    310. 
Gaskill   v.   Badge,   79. 
Gates  v.  Labeaume,  369. 
Gates   v.    Caldwell,   228. 
Gates  v.   Preston,  530. 
Gault    v.    Woodbridge,    562. 
Gay   v.   Walker,   225. 
Gayetty   v.   Bethune,  52. 
Gay  lord  v.  Dodge,  27. 
Gavin   v.    Shnman,    647. 
Geary   v.    Simmons,    530,   545. 
Geary  v.  City  of  Kansas,  236. 
Gebhart  v.   Reeves,   408. 
Gebhard    v.    Sattler,    686. 
Gee  v.  Moore,  271. 
Geekie   v.   Kirby   Co.,   648. 
Geer  v.  Mining  Co.,   81. 
George  v.  Kimball,   289. 
German  Ins.  Bk.  v.  Nunes,  369. 
Gernet  v.  Lynn,  472,  691. 
Geyer    v.    Wentzel.    469. 
Gibbs  v.  Thayer,  272,  273. 


Gibbons  v.  Hoag,  375,  433. 

Gibson  v.  Chouteau,  52,  53,  693. 

Gibson   v.   Warden,   309. 

Giesy  v.  R.  R.  Co.,  64. 

Gifford  v.  Choate,  477. 

Gigos  v.  Cochran,  386,  614. 

Gilbert  v.  Chapin,  468. 

Gilbert  v.   Holmes,  328. 

Gilbert  v.   How,   328. 

Gilchrist  v.  Rea,  363. 

Giles  v.  Lyon,  588. 

Gill  v.   Wood,  299. 

Gill   v.   Hoblitt,,  595. 

Gillett  v.  Gaffney,  79. 

Gillett    v.    Neaganza,    606. 

Gillilan  v.   Swift,  305. 

Gillham  v.  Mustin,  496. 

Gilkey  v.  Hamilton,  358,  359. 

Gilmore  v.  Sapp,  177,  179. 

Gilpin  v.   Hollingsworth,   468. 

Gissey  v.  R.  R.   Co.,  64. 

Given  v.  Marr,  621. 

Gjerstadengen   v.    Van   Duzen,    140. 

Glading  v.  Frick,  83. 

Gladsen  v.  Whaley,  602. 

Gittens  v.  Lowry,  685. 

Glency    v.    Elliott,    637. 

Glass    v.    Hurlbut,    725. 

Glover  v.  Payn,  428. 

Goddard   v.    Perkins,    526. 

Godfrey  v.  Bradley,   149. 

Godfrey  v.  Valentine,  599. 

Godfrey  v.  Alton,  204. 

Colder  v.  Brewster,  348. 

Goodel   v.  Hibbard,   22. 

Goodrich  v.  Lambert,   470. 

Goodman  v.   Randall,   230. 

Goodspeed   v.    Fuller,   215. 

Goodwin  v.  Goodwin,  366. 

Goodwin  v.  Baldwin,  450. 

Gorham  v.   Arnold,   511. 

Gorman  v.  Stanton,  213. 

Gossard   v.   Fergusen,   574. 

Gossett  v.   Kent,   210,   309. 

Gossom  v.  Donaldson,  561. 

Goudy  v.   Hall,   581. 

Gould  v.  Mather,  349. 

Gould  v.  Sternberg,  608. 


TABLE    OF    CASES. 


xlv 


Gould  v.  Day,  239,  637. 

Gould  v.  Hendrickson,  343. 

Gowan  v.  Jones,  572. 

Graff  v.  Middleton,  268. 

Graham    v.   Bleakie,    571. 

Graham  v.   Graham,  49. 

Grandin  v.  Hernandez,  232. 

Granger  v.  Avery,  54. 

Grant  v.   Davenport,   408. 

Grant  v.  Fowler,   686. 

Grantern   v.   Rosecierrance,   598. 

Gray  v.  Pingree,  46. 

Gray  v.   Ulrich,   234,   236. 

Gray  v.   Hayes,   283. 

Gray  v.  Blanchard,  252. 

Gray  v.   Brignardello,  568. 

Gray    v.    Gray,    618. 

Grayson  v.  Weddle,  513. 

Graves  v.  Buren,   643. 

Graves  v.  Graves,  215. 
Graves  v.   Coutant,   515. 
Grebbin  v.  Davis,  545. 
Green  v.   Liter,    179. 
Green  v.  Blanchard,  17,  286. 
Green  v.  Myers,  555. 
Green  v.  Marks,  543. 
Green  v.  Holway,  242. 
Green  v.  Irving,  694. 
Green  v.   Slayter,   521,   525. 
Green  v.   Pulsford,   708. 
Green  v.  Garrington,  83. 
Green  Bay  Co.  v.  Hewitt,  260. 
Greenby  v.  Kellogg,  229. 
Greene   v.    Dickson,    25. 
Greene  v.  Lunt,  633. 
Greenleaf    v.    Bebee,    461. 
Greenwood  v.  Murray,  503. 
Greer   v.   Higgins,   76. 
Grey  v.  Tubbs,  392. 
Gridley  v.  Hopkins,  205. 
Gridley  v.  Watson,  360,  534. 
Gridley  v.   Gridley,   490. 
Gridley  v.   Philips,   360. 
Griffin    v.    Ranney,    242. 
Griffin  v.  Rogers,   367. 
Griffin   v.    Proctor,   332. 
Griffin  v.  Sheffield,  236,  258.  . 
Griffin  v.   Page,  579. 


Griffith  v.  Harvester  Co.,  541. 
Grignon's  Lessee  v.  Astor,  129,  169, 

583. 
Grimes  v.  Orrand,  210,  248. 
Grimstone   v.   Carter,   428. 
Griswold  v.  Smith,  725. 
Griswold  v.  Fuller,  723. 
Grogan  v.  San  Francisco,  170. 
Groner  v.   Smith,  232. 
Grout    v.    Townsend,    216. 
Grove  v.  Cather,  518. 
Grover  v.  Hale,  348,  349,  353. 
Groves   v.    Webber,   527. 
Grube    v.    Wells,    683,    687. 
Grumley  v.  Webb,  365. 
Grundies    v.    Reid,    550. 
Guidry    v.    Woods,    136. 
Guild  v.  Richards,  226. 
Guild  v.  Hall,  476. 
Guilford    v.    Love,    579. 
Guion  v.  Pickett,  25,  333,  336. 
Guiteau  v.  Wisely,  535. 
Gulden  v.  O'Bryne,  387. 
Gulf  R.  R.  Co.  v.  Owen,  686. 
Gunton   v.   Zantzinger,   569. 
Guyer  v.  Wookey,  606. 
Guynn  v.   McCauley,   569. 
Gwynne   v.    Neiswanger,    642. 

Hackett  v.  Callander,  725. 
Hadden  v.  Shoutz,  263. 
Haddock  v.  Haddock,  608. 
Hague  v.   Hague,   284. 
Hague  v.  West  Hoboken,  423. 
Hahn  v.  Kelly,  541,  579. 
Hairston  v.  Jandon,  385. 
Haldeman  v.  R.  R.  Co.,  64. 
Hale  v.   Woods,  326. 
Haley  v.   Boston,  471. 
Halifax  v.  Stark,  224. 
Hall  v.  Ashby,  288. 
Hall  v.  Jarvis,  46,  156,  169. 
Hall  v.  Leonard,  210,  248. 
Hall  v.  Bumpstead,  254. 
Hail  v.  Chapman,  583. 
Hall  v.  Hall,  460,  503. 
Hall  v.  Dennison,  371. 
Hall  v.  Gould,  512. 


xlvi 


TABLE    OP    CASES. 


Hall  v.  Mooring,  684. 
Hall  v.  McDuff,  389. 
Hall  v.  Law,  685. 
Hall's  Lessee  v.   Ashby,   275. 
Hallahan  v.  Herbert,  518. 
Halloran  v.  Whitcomb,  50. 
Halleck  v.  Guy,  574. 
Hallett  v.  Wylie,   397,  399. 
Hallyburton  v.   Carson,  494. 
Hallas  v.   Bell,   687. 
Hamelman  v.  Mounto,  217. 
Hamilton  v.  Lubkee,  357. 
Hamilton  v.  Doolittle,  268. 
Hamilton  v.  Valiant,  639. 
Hamilton  v.  Wright,  400,  685,  688. 
Hamilton  v.  Boggess,  685. 
Hamilton  v.  Porter,  460. 
Hamlin  -v.  Express  Co.,  466,  467. 
Hammond  v.  Gordon,   258. 
Hammond  v.  Wells,  519. 
Hancock  v.   Wentworth,   30. 
Hand  v.  Winn,  301. 
Handley  v.  Wrightson,  473. 
Hanford   v.    Blessing,   428. 
Hannahs  v.  Felt,  526. 
Hansen  v.  Eichstaedt,  73. 
Hanson  v.  Armstrong,  606,  607. 
Hanson  v.  Vernon,  627. 
Happin  v.  Doty,  725. 
Haraden  v.  Larrabee,  473. 
Harbeck   v.   Harbeck,    672. 
Hardin  v.  Crate,  213,  239. 
Hardin  v.  Osborne,  239,  381. 
Hardin  v.  Jones,  608. 
Hardin  v.  Governeuer,  684 
Harding  v.  Hale,  291. 
Harding  v.   Strong,   608. 
Harland  v.  Eastman,  671,  709. 
Harlowe  v.   Hudgins,   278. 
Harman  v.  Oberdorfer,  239. 
Harnage   v.   Berry,    695. 
Harper  v.   Rowe,   578. 
Harpham  v.  Little,   560. 
Harrer  v.  Waldner,  298,  622. 
Harris  Case,   291. 
Harris  Estate,  656. 
Harris   v.   Glenn,   26. 
Harris  v.  Lester,  417,  584. 


Harris  v.   Douglas,   499. 

Harris  v.  McGovern,   695. 

Harris  v.  Fly,  490. 

Harrington  v.   Fish,    117,   234,  254. 

Harrington  v.  Fortner,  436. 

Harrington  v.  Wofford,  598. 

Harrison  v.  Boring,  205. 

Harrison  v.  Phillips'  Academy,  213. 

Harrison  v.  Simmons,  245. 

Harriman   v.   Gray,   268. 

Harryman   v.   Star,   569. 

Harshaw  v.  McKesson,  616. 

Harshbarger    v.    Foreman,    515. 

Hart  v.  Stone,  409. 

Hart  v.  Chalker,  440. 

Hart  v.  Lindsey,   553. 

Hart  v.   Smith,   643. 

Hart  v.  Lyon,  413. 

Hart  v.  Gregg,  325. 

Hartford  Ore   Co.  v.   Miller,   306. 

Harthill,  In  re,  375. 

Hartshorn  v.  Dawson,  254. 

Harvey  v.  Lebetter,  292. 

Harvey  v.  Varney,  289. 

Harvey  v.  Sullen's  Heirs,  462. 

Haskill  v.  Sevier,  436. 

Hastings   v.   Johnson,   561. 

Hastings   v.    Cutler,    80. 

Hatch  v.  R.  R.  Co.,  62,  63. 

Hatch   v.   Hatch,    177. 

Hatch  v.   Bates,   217. 

Hatch  v.  Kelly,  662. 

Hatch  v.  Buffalo,  723. 

Hatch  v.  Bullock,  690. 

Haughwout  v.  Murphy,  522. 

Havens  v.  Sherman,  558. 

Haverstick's    Appeal,    473. 

Hawk  v.  McCullough,  217,  265. 

Hawkins  v.  Champion,  218. 

Hawkins  v.  Hawkins,   573. 

Haworth  v.   Huling,   548. 

Haworth  v.  Taylor,  90. 

Hawley  v.   Northampton,   489. 

Hawley  v.  Morse,  76. 

Hayden  v.  Bucklin,  521,  523,  593. 

Hayden   v.    Stoughton,    461. 

Haydock  v.  Stow,  385. 

Hayes    v.    Livingston,    50. 


Table  of  cases. 


xlvii 


Hayes  v.  Shaw,  542. 

Hayes  v.  Stiger,  571. 

Hayes  v.  Fessenden,  518. 

Haynes  v.  Bourn,  21,  653. 

Haynes  v.  Boardman,  689. 

Hays  v.  Russell,   577. 

Hay  ward  v.  Ornisbee,  126,  129. 

Hayward  v.  Davidson,  313. 

Hayward    v.    Cain,    342. 

Haywood  v.  Collins,  526,  596. 

Haworth  v.  Huling,  548. 

Haxton  v.  Corse,  654. 

Hazel  v.  Hagan,  478. 

Headley  v.  Gaundry,  451. 

Heaton  v.   Fryberger,   209. 

Heath   v.   Heath,   210. 

Hect  v.  Spears,  516. 

Hedrick  v.  Hughes,    158,   694. 

HeiPs  Appeal,  554. 
Heinlen  v.  Heilborn,  175. 
Hellreigil  v.  Manning,  247,  720. 
Hemingway  v.  Scales,  297. 
Hemphill  v.  Davies,  133. 
Hemstreet  v.  Burdick,  328. 
Henderson  v.   Ford,  330. 
Henderson   v.   Whitinger,   362. 
Henderson  v.  Downing,  369. 
Hendrick  v.    Cleveland,    589. 
Hendley  v.   Baccus,  596. 
Henly  v.  Hotaling,  428. 
Henning  v.  Paschke,  248. 
Henning  v.  Punnet,  570. 
Henning   v.   Varner,   466. 
Hensley   v.    Baker,    560. 
Herman  v.  Deming,  432,   440. 
Herndon  v.   Reed,  257. 
Herrick  v.   Morill,  221. 
Herrington  v.  Williams,  609. 
Herrington  v.  McCollum,  523. 
Herrington  v.  Herrington,  522. 
Hertig  v.  People,  417. 
Hersey  v.   Turbett,   592. 
Hess  v.  Voss,   591. 
Hetzel  v.  Barber,  25. 
Heuser  v.  Harris,  472. 
Heustis  v.  Johnson,  590. 
Hewes  v.  Reis,  633. 
Hewitt  v.  Week,  83. 


Hewitt  v.  Morgan,  235. 

Heyward  v.  New  York,  64,  623. 

Hickman   v.  Quinn,  283. 

Hickox  v.  Greenwood,  518. 

Hicks  v.  Skinner,  560. 

Hickman  v.   Quinn,   283. 

Hickman  v.  Perrin,  440. 

Higbee  v.  Rice,  78. 

High  tower  v.   Rigsby,  516. 

Hightower  v.  Handlin,  561. 

Hildreth  v.  Thompson,  562. 

Hiles  v.  Atlee,  83. 

Hill  v.  Franklyn,  25. 

Hill  v.  Treat,  42,  460,  513. 

Hill  v.  Epley,  74. 

Hill   v.   Miller,    175. 

Hill  v.  Reynolds,  342. 

Hill  v.   Wall,   556. 

Hillis  v.  Hillis,  493. 

Hilton  v.  Asher,  230. 

Himes  v.  Keighblinger,  238. 

Hines    v.    Perkins,    429. 

Hinkley  v.  Greene,  32,  686. 

Hinman  v.  Warren,  186. 

Hinsdale  v.   Thornton,    342. 

Hinson  v.  Adrian,   617. 

Hinton  v.   Milburn,  473. 
Hiss  v.  McCabe,  256. 
Hitchcock   v.   Merrick,   449. 
Hoadley  v.  Stephens,  34. 
Hoard  v.  Hoard,  583. 
Hobson  v.   Ewan,   561. 
Hochlander   v.   Hochlander,   596. 
Hodgen  v.  Guttery,  594. 
Hoffman  v.   Mackall,   372. 
Hoffman  v.  Stigers,  298. 
Hoffman  v.   Felt,   390. 
Hogans  v.  Carruth,  234. 
Hogue   v.   Corbit,   559. 
Holbrook  v.  Dickinson,  631,  635. 
Holbrook  v.  Debo,  271,   272,  273. 
Holder  v.  Mount,  660. 
Holdane  v.  Cold  Spring,  291. 
Holloway  v.  Gallway,  4CC. 
Holland   v.   Kreider,   26. 
Holland   v.    Fuller,   309. 
Holland   v.   Holmes,   390,   719. 
Hollman  v.  DeNyse,  301. 


xlviii 


TABLE    OF    CASES. 


Holm  v.  Wust,   13. 
Holman  v.  Gill,  341,  345. 
Holmes  v.  Seely,  31. 
Holmes  v.  R.  R.  Co.,  61. 
Holmes  v.  Jarret  Moon,  284. 
Holmes  v.  Johnson,  505. 
Holmes  v.  Carondolet,  607. 
Holmes  v.  Shaver,  568. 
Holmes  v.  McGinty,  447. 
Holmes  v.  Evans,  386. 
Holmes  v.  Mead,  485,  487. 
Hooker  v.  De  Palos,  614. 
Hooper  v.  Scheimer,  129,   164. 
Hope   v.   Sawyer,   257. 
Hope  v.  Blair,  268,  562. 
Hopper's  Will,  496. 
Hopping  v.  Burnham,  562,  563. 
Hopkins  v.  McCann,  651. 
Hopkins  v.  Medley,  591. 
Hoppin  v.  Doty,   689,   725. 
Hoppongh  v.   Struble,   461. 
Hopson   v.    Commonwealth,   472. 
Hornbeck   v.    Westbrook,    212. 
Horner  v.  Zimmerman,  289. 
Hosmer  v.  Wallace,   164. 
Hosmer  v.  Campbell,  357. 
Hot   Springs  Cases,   131. 
Hotchkiss  v.  Cutting,  573,  595. 
Houck  v.  Yates,   197. 
Hough  v.  Land  Co.,  313,  315. 
Houghton  v.  Kendall,  472. 
Houghton  v.  Hardenburg,   178. 
Houseman  v.  Girard  Loan  Ass'n,  8, 

743. 
Housley   v.    Lindsay,    569. 
Houston  v.  Blackman,  217. 
Houx  v.  Batteen,  231. 
Howard  v.  Kennedy,  592. 
Howe   v.   Thayer,   83,   554. 
Howe  v.  Williams,  252. 
Howe  v.  Hutchinson,   13. 
Howe   v.   Howe,   238. 
Howland  v.  Blake,  237. 
Howland  v.  Cemetery  Assoc'n,   695. 
Howland    v.    Shurtleff,    450. 
Howerter  v.  Kelly,  595. 
Hoy  v.   Allen,  236. 
Hoyt  v.  Kimball,  226,  287. 


Hoyt  v.  Jaques,  328. 

Hoyt  v.  Swar,  300. 

Huber  v.  Huber,  299. 

Huber  v.  Gazley,  204. 

Hubbard  v.  Bell,  54. 

Hudson  v.  Putney,  688. 

Hudson  v.   Poindexter,   232. 

Huebsch   v.    Schell,   216. 

Huftalin  v.  Misner,  577. 

Hughes  v.  Tabb,  350. 

Hughes  v.  Washington,  359. 

Hughes  v.  Watt,  579. 

Hulett  v.  Inlow,  297. 

Huls  v.   Bunten,  686. 

Humbert  v.  Trinity  Ch.,  683,  687. 

Hungerford's  Appeal,   545. 

Hunnicut  v.  Peyton,  686. 

Hunt  v.  Rowley,  89. 

Hunt  v.  Hunt,  53,  473. 

Hunt  v.  Johnson,  216,  299. 

Hunt  v.  Amidon,   228. 

Hunt  v.  Bridge  Co.,  312. 

Hunt  v.  Chosen  Friends,  85,  671. 

Hunt  v.   White,   463. 

Hunt  v.  Haven,  592. 

Huntt  v.  Tovvnsend,  348,  352. 

Hunter  v.  Watson,  210,  248. 

Hunter  v.  Vaughn,  336. 

Hunter  v.  Buckner,  441. 

Hunting  v.  Walter,  346,  570. 

Hunton  v.  Nichols,  695. 

Hurd   v.   Brisner,   643. 

Hurley  v.   Estes,   421. 

Husbands  v.  Jones,   526. 

Huston  v.  Seeley,  302. 

Hutchens  v.  Doe,  561. 

Hutchings  v.  Low,  130. 

Hutchins  v.  Carleton,  266. 

Hutchins  v.  Kimmell,  672. 

Hutchinson  v.  R.  R.  Co.,  265. 

Hutchinson's   Appeal,   554. 

Hutton  v.  Williams,  574. 

Hyam  v.   Edwards,   667. 

Hyde  v.  Olds,  371. 

Hyde  v.   Tanner,   662. 

Hyde  v.  Warren,  447. 

Hyde   Park  v.   Borden,   408. 

Hydraulic  Co.  v.  Loughry,  532,  535. 


TABLE   OF    CASES. 


xlix 


111.    Land   &   Loan    Co.    v.    Bonner, 

671. 
Illinois,  etc.,  R.  R.  v.  Johnson,  323. 
Imp.  Fire  Ins.  Co.  v.  Cunning,  589. 
Ingals  v.   Plamondon,   728. 
In  re  McLean,   72. 
In  re  Fox,  490. 
In  re  Chambers,  73. 
In  re  Ca3\vell's  request,  73. 
In  re  Phillips,  235. 
In  re  Harthill,  375. 
In  re  Lewis,  368. 
In  re  Muller,  375. 
In  re  Carow,  375. 
In  re  Sands  Brewing  Co.,  434. 
Indianapolis    R.    R.    Co.    v.    Ross, 

688. 
Ingle  v.  Jones,  363. 
Ingle  v.  Culbertson,  421. 
Ingraham  v.  Grigg,  370. 
Ins.  Co.  v.  Dake,  83. 
Ins.  Co.  v.  Walsh,  287. 
Ins.  Co.  v.  Scales,  641. 
Ins.   Co.  v.   Eldridge,   452. 
Ins.  Co.  v.  Stewart,  289. 
International     Bank     v.     Sherman, 

376. 
Irvine  v.  Marshall,  125. 
Irving  v.  Brownell,  258,  683. 
Irwin  v.  Dixon,   204. 
Isett   v.   Stuart,   594. 
Isham  v.  Bennington  Co.,  318. 
Ishmeal  v.  Parker,  614. 
Isler  v.  Brown,  525. 
Israel  v.  Arthur,   583. 
Ivy   v.    Clawson,    602. 

Jacks  v.  State,  350. 
Jacks  v.  Dyer,  638. 
Jackson  v.  Ingraham,  19. 
Jackson  v.  Hart,  19. 
Jackson  v.   Veeder,  25. 
Jackson  v.  Vandcrheyden,-  28. 
Jackson  v.   Alston,   77. 
Jackson   v.   Warren,    84. 
Jackson  v.   Cary,   212,  250. 
Jackson  v.   Schoonmaker,  213. 
Jackson  v.  Bard,  213. 


Jackson  v.  Leek,  215. 
Jackson  v.  Dillon,  216. 
Jackson   v.   Meyers,   218,   263. 
Jackson  v.  Perkins,  238. 
Jackson  v.  Hudson,  263. 
Jackson  v.  Rosvelt,  263. 
Jackson  v.  Sisson,  284. 
Jackson  v.  Henry,  289. 
Jackson  v.   Campbell,   316. 
Jackson  v.  Bush,  343. 
Jackson  v.  Hagaman,  343. 
Jackson  v.  Delancey,  344. 
Jackson  v.  Merrill,  481. 
Jackson  v.  Andrews,  521. 
Jackson  v.  Robinson,  583. 
Jackson  v.  Spink,  562. 
Jackson  v.  Young,  563. 
Jackson  v.  Hendricks,  653. 
Jackson  v.  Browner,  671. 
Jackson  v.  Berner,  683. 
Jackson  v.   Woodruff,   686. 
Jackson  v.   Wheat,   687. 
Jackson  v.  Johnson,  688. 
Jackson  v.  Moore,  693. 
Jackson  v.  Boneham,  667. 
Jackson  v.   Harsen,   395. 
Jackson  v.  Delecroix,  396. 
Jackson  v.  Allen,  396. 
Jackson  v.   Bull,   424,  481. 
Jackson  v.  Roberts,  424. 
Jackson  v.  Devitt,  425. 
Jackson  v.  McChesney,  428. 
Jackson  v.  Robbins,  477. 
Jackson  v.  Esty,  641. 
Jackson  v.  Morse,  642. 
Jackson  v.  Littel,  433,  434. 
Jackson  v.  Wood,  450. 
Jackson  v.  Housel,  473. 
Jackson  v.  Harris,  481. 
Jackson  v.  Jackson,  496. 
Jackson  v.  Warren,  592. 
Jackson  v.  Anderson,   560. 
Jackson  v.  Green,  657. 
Jackson  v.  Winslow,  268. 
Jacobus  v    Smith,  573. 
James  v.  Mooro,   17. 
James  v.   Stiles,  244. 
James  v.  James,  461. 


i 


TABLE    OP    CASES. 


James  v.  Morey,  424. 

Jainieson  v.  Hay,  476. 

Jamison  v.  Fopiana,  409. 

Jamison  v.  Perry,  090. 

Janes  v.  Williams,  503. 

Janvrin  v.  Fogg,  242. 

Jarvis  v.  Peck,  630. 

Jassey  v.   White,  478,   479,   701. 

Jecks   v.   Tousing,   21. 

Jefferis  v.  Land  Co.,  53 

Jeffers  v.  Radcliff,  42. 

Jelks  v.  Barrett,  359. 

Jemison  v.  Bank,  322. 

Jenkins  v.  Voltz,  25. 

Jenkins  v.  Rosenburg,  427. 

Jennings  v.  Simpson,  542. 

Johnson   v.   Mcintosh,    60. 

Johnson  v.  United  States,  51. 

Johnson   v.    Bantock,    217. 

Johnson  v.  Shaw,  240. 

Johnson  v.  McGraw,  367. 

Johnson   v.   Montgomery,   304. 

Johnson   v.   Corbett,  449,   663. 

Johnson  v.  Bush,   319. 

Johnson  v.  Hubbell,  394. 

Johnson  v.  Houston,  420. 

Johnson  v.   Stagg,   428,  440. 

Johnson  v.  Carpenter,  448. 

Johnson  v.  Dodge,  614. 

Johnson  v.  R.  R.  Co.,  62. 

Johnson  v.  Quarles,  292. 

Johnson  v.  Johnson,  476. 

Johnson  v.  Schloesser,  537,  538. 

Johnson    v.    Baker,    571,    578. 

Johnston  v.  Haines,  257. 

Johnston  v.  Geisriter,  375. 

Johnston   v.   Mendenhall,    390. 

Johnston  v.   Smith,   637. 

John    Hancock   etc.,    Co.    v.   Moore, 

668. 
Jolliff  v.  Jolliff,  619. 
Jones  v.  Johnson,  55. 
Jones   v.   Roberts,   80. 
Jones  v.  Meyers,   131,  136,  164. 
Jones  v.  Martin,  258. 
Jones  v.  R.  R.  Co.,  201. 
Jones  v.  Franklin,  229. 
Jones  v.  Monroe,  211. 


Jones  v.  Clifton,  296. 
Jones  v.  Carter,  320. 
Jones  v.  Scott,  339,  341. 
Jones  v.  Wood,  383,  480. 
Jones  v.  Brewer,  388. 
Jones   v.   Bacon,  477. 
Jones  v.  Doss,  515. 
Jones  v.  Laphain,  517. 
Jones  v.  Porter,  550. 
Jones  v.   Patterson,   695. 
Jones  v.  Gardner,  719. 
Jones  v.  Jenkins,  727. 
Jones  v.  Devore,  631. 
Jones'  Estate,  553. 
Jordan  v.  Bradshaw,  341. 
Joseph  v.  Biglow,  213. 
Joy  v.  Berdell,  606. 
Jumel  v.  Jumel,  291. 

Kane  v.  Whittick,  544. 
Kansas  v.  R.  R.  Co.,  321. 
Karnes  v.  Harper,  547. 
Kaufman  v.  Whitney,  299. 
Kayser  v.  Heavenrich,  369. 
Kean  v.  Ash,  605. 
Kearney  v.  Vaughn,  264. 
Kearney  v.  Post,  401. 
Keating  v.  Keating,  619. 
Keegan    v.    Geraghty,    39,    41,    658, 

665. 
Keeler  v.  Keeler,  590. 
Keemle  v.  Conrad,  550. 
Keen  v.  Preston,  367. 
Keith  v.  Keith,  341. 
Kelley  v.  Bourne,  211. 
Kelly   v.   Hendricks,   50. 
Kelly  v.  McGuire,   671. 
Kelly  v.  Transportation  Co.,  315. 
Keller  v.   Brickey,   169. 
Kellett  v.   Shepard,  467. 
Kellogg  v.  Hale,  332. 
Kemp  v.  Cook,  543. 
Kennedy  v.  Municipality  No.  2,  56. 
Kennedy  v.  Kennedy,  473. 
Kennedy  v.   People,   505. 
Kennedy  v.   Gaines,  364. 
Kent  v.  Welch,  228. 
Kent  v.  Cantrall,  274. 


TABLE    OF    CASES. 


II 


Kent  v.  Atlantic  DeLaine  Co.,  279, 

281. 
Kenyon  v.   See,   22. 
Kenzie  v.  Roleson,  4CG. 
Kerfoot  v.  Cronin,  114,  224. 
Kerr  v.  Dougherty,  4C1. 
Kerr  v.  Birnie,  239. 
Kerr  v.  Hitt,  G95. 
Kerr  v.  Agard,  426. 
Ketchum  v.  Ri  R.  Co.,  336. 
Kidder  v.  Aholtz,  518. 
Kille  v.  Eye,  238. 
Kimball  v.  Blaisdell,  273. 
Kinim  v.  Weippert,  296. 
Kincaid  v.  Dormey,  89. 
Kincaid  v.  Tutt,  572. 
King  v.  Rea,  219,  302. 
King  v.  Whiton,  339. 
King  v.  Ruckman,  384,  387. 
King  v.  Y.  M.  Ass'n,  515. 
King  v.  Kent's  heirs,  581. 
King  v.  Blood,  595. 
King  v.  Goodwin,  560. 
Kingman  v.  Barton,  371. 
Kinsley  v.  Ames,  446. 
Kinsman   v.    Loomis,    268. 
Kirby  v.  Runals,  540,  547. 
Kirk  v.   Burkholtz,   218. 
Kirk  v.  Vanberg,  343. 
Kirkaldie  v.  Larrabee,  48. 
Kirkland  v.  Cox,  332,  334. 
Kirkpatrick  v.   Chestnut,   491. 
Kirtz  v.   Behrensmeyer,   554. 
Kister  v.  Reeser,  224. 
Kleppner  v.   Laverty,   472. 
Knapp  v.  Brown,   518. 
Kneeland  v.  Van  Valkenburgh,  249. 
Knight  v.   Waterman,   370. 
Knight  v.  Mahoney,  483. 
Knotts  v.   Stearns,  570. 
Knox  v.   Brady,   302. 
Knox  v.  Leidgen,  631. 
Knox  v.  Cleveland,  647,  649. 
Knox  v.  Baton  Rouge,  605. 
Knox    v.    Jones,    489. 
Koehler  v.   Ball,   568,   573. 
Koelle  v.  Knecht,  412. 


Korn  v.  Cutler,  473. 
Kostenboder  v.  Spotts,  571. 
Krant  v.  Crawford,  53. 
Kreichbaum  v.  Melton,  433. 
Kruger  v.  Knob,  643. 
Kruse    v.    Wilson,    223,    260,    342, 

344,   685. 
Kruse  v.  Scrips,  89. 
Kruson  v.  Kruson,  605. 
Kurtz  v.  Hibner,  464. 
Kurtz   v.   Sponable,  447. 
Kyle  v.  Kavanagh,  389. 

La  Framboise  v.  Crow,  28,  305. 
La  Plante  v.  Lee,  362. 
Laberee  v.  Carleton,  216. 
Lacey  v.  Davis,  643. 
Ladd   v.   Harvey,  460. 
La  Plante  v.  Lee,  362. 
Laird  v.  Boyle,   399. 
Lake  v.  Gray,  641. 
Lallerstedt  v.  Jennings,  460. 
Lamar  Co.  v.  Clements,  204. 
Lamar  v.   Turner,  224,   340. 
Lambert  v.  Livingston,  546. 
Lametti   v.  Anderson,   399. 
Lammers  v.  Kissen,  53,  54,  197. 
Lamb  v.  Davenport,  135. 
Lamb  v.  Wakefield,  229,  283. 
Lambert  v.  Smith,  217. 
Lampman  v.  Milks,  727. 
Lamprey   v.    State,    197. 
Lancaster   v.   Wilson,   592. 
Land  v.  Keirn,  471,  481. 
Landts  v.  Brant,  343. 
Lane  v.  Soulard,  209. 
Lane  v.   Debenham,   349. 
Lane  v.  Gould,  686. 
Lanfair  v.  Lanfair,  428. 
Lang  v.  Phillips,  536. 
Langdon  v.  New  York,  183. 
Langsdale  v.  Mills,  567. 
Langdeau  v.  Hanes,  160,  161,  169. 
Lain  v.  Cook,  644. 
Lanier  v.   Booth,   30. 
Lansing  v.  Smith,  187. 
Laramore  v.  Minish,  682. 


lii 


TABLE    OF    CASES. 


Large  v.  Fisher,  644. 
Lassell  v.  Powell,  558,  576. 
Lash  v.  Hardick,  535. 
Lash  v.  Lash,  622. 
Latham  v.  Smith,  242. 
Lathrop   v.   Brown,   532. 
Lawe  v.  Hyde,  212. 
Lathrop  v.  Am.  Emig.  Co.,  545. 
Latta   v.   Tutton,   541. 
Lattin  v.  Gillette,  8,  10. 
Laughlin  v.  Fream,  217. 
Laverty  v.  Moore,  687. 
Lawe  v.  Hyde,  212. 
Lawrence's  Will,  496. 
Lawrence  v.  Farley,  238. 
Lawrence  v.  Ball,  450. 
Lawrence  v.  Belger,  532. 
Lawrence  v.  Fast,  538. 
Lawrence  v.   Englesby,   555. 
Learned  v.  Welton,  349. 
Leavell  v.  Poore,  523. 
Leazure  v.  Hillegas,  313. 
Le  Beau  v.  Armitage,  59. 
Lee  v.  Buggies,  609. 
Leeming  v.  Sheratt,  476. 

Leese.v.  Clark,  181. 

Lefevre  v.  Lefevre,  487,  488. 

Legget  v.  Doremus,  24. 

Leitch  v.   Wells,   84,   521,  592,   593. 

Leiter  v.  Sheppard,  22. 

Leland  v.  Wilson,  339,  341. 

Lenox  v.  Clark,  341,  579. 

Leonard  v.  Diamond,  334. 

Le  Franc  v.  Bichmond,  232. 

LeBoy  v.  Jamison,   175,  178,  180. 

Leupold  v.   Kruse,   26. 

Levi  v.  Thompson,  155. 

Levy  v.  Levy,  657. 

Levy  v.  Griffiths,  478. 

Lewis  v.  Aylott,  459. 

Lewis  v.  Owen,  549. 

Lewis  v.  Marshall,  85,  667. 

Lewis  v.  Darling,  491. 

Lewis  v.  Overby,  232. 

Lewis'  Appeal,  47. 

Liddel  v.  McVickar,  662. 

Life   Ass'n   of   America    v.    Fassett, 
542. 


Life  Ins.  Co.  v.  Norton,  67. 

Life  Ins.  Co.  v.  Smith,  315. 

Life  Ins  Co.  v.  White,  321. 

Lick  v.  Bay,  724. 

Light  v.  West,  640. 

Liles  v.  Woods,  598. 

Lindsey  v.  Bates,  516. 

Lindsey  v.  Thompson,  47. 

Lines  v.  Lines,  334. 

Linker  v.  Long,  278. 

Lillard  v.   Buckers,   283. 

Lilly  v.  Palmer,  425. 

Lirette  v.   Carrane,   538. 

Litchfield  v.  Burwell,  597. 

Little  v.  Harvey,  534. 

Little  v.  Paddelford,   13. 

Littlejohn  v.  Egerton,  24. 

Littleton   v.    Giddings,    74. 

Livingstone  v.   McDonald,   257. 

Lloyd  v.   Bunce,  222. 

Locke  v.  Caldwell,  450. 

Lockett  v.  James,  28. 

Lockwood  v.  B.  B.  Co.,  54. 

Lockwood  v.   Sturdevant,   360 

Logan  v.  Steel,  49. 

Logansport  v.  Dunn,  204. 

Lombard  v.   Culbertstand,   83. 

Lombard     v.     Sinai     Congregation, 

323. 
Long  v.  Hewitt,  39. 
Long  v.  Wagoner,  220. 

Long  v.  Shelby  Co.,  404. 

Long  v.  Mostyn,  438. 

Long  v.  Weller,  571. 

Long  v.  Barker,  589. 

Long  v.  Linn,  608. 

Long  v.   Burnett,   644. 

Loomis  v.  Biley,  593. 

Looney  v.  Adamson,  303. 

Lorrillard    v.    Coster,   489. 

Loughridge  v.  Bowland,   80. 

Loving  v.  Paire,  372. 

Lovering  v.  Allen,  493. 

Lovingston  v.   St.  Clair  Co.,  54. 

Low  v.  Graff,  247. 

Lowry   v.    Davis.    440. 

Loyless   v.   Blackshear,   283. 

Lucas  v.  Harris,  451. 


TABLE    OF    CASES. 


liii 


Luce  v.  Durham,  463. 
Lum  v.  McCarty,  69,  73. 
Luppie   v.   Winans,   665. 
Lupton   v.   Lupton,  491. 
Lyon  v.  Vannatta,  364. 
Lyon  v.  Hunt,  642. 
Lyon  v.   Marsh,  478. 
Lyon  v.  Kain,  244,  554,  652. 
Lytle  v.  Arkansas,  131. 
Lytle  v.  Beveridge,  462. 

McAlister  v.   Butterfield,  463. 
McAllister  v.  Plant,  446. 
McAllister  v.   McAllister,  487. 
McArthur  v.  Browder,   182. 
McAusland  v.  Pundt,  558. 
McBane  v.   Wilson,   532. 
McCabe  v.   Raney,   50. 
McCabee  v.   Mazzuchelli,    188. 
McCall  v.  Niely,  685. 
McCardia  v.  Billings,  254,  256. 
McCartrey  v.  Kittrell,  539. 
McCarty  v.   Carter,   518. 
McCartney  v.  King,  560. 
McChesney  v.  Brown's  Heirs,  296. 
McCready  v.  Sexton,  643,  647. 
McLean  v.  McBean,  660. 
McClellan  v.   Darrah,   614. 
McClellan  v.  Kellogg,  683. 
McClintic  v.  Ocheltree,  296. 
McClintock   v.   Rogers,   89. 
McClure  v.   Burris,   448. 
McClurg  v.  Phillips,  436. 
McClurken   v.   Logan,   519. 
McClurken    v.    Detrich,    614. 
McCombie  v.  Davis.  519. 
McConnell   v.   Smith,   362,   470. 
McConville  v.  Howell,  657. 
McCoraher  v.  Commonwealth,  119. 
McCormick  v.  Sullivant,  34. 
McCormack  v.  Patchin,  628. 
McCormick  v.   Huse,   198. 
McCowan  v.  Foster,  581. 
McCoy  v.  Morrow,  662. 
McCracken    v.    San    Francisco,    409. 
McCraney   v.    McCraney,    304. 
McCurdy  v.   Canning,  297. 
McDermid  v.   Russell,  595. 


McDonald   v.    Gregory,   48. 
McDonald  v.  Life  Ins.  Co.,  570. 
McDonald  v.  Edmonds,   164. 
McDonald  v.  Bear  River  Co.,  326. 
McDonald  v.  Smalley,   182. 
McDuff  v.  Beauchamp,  297,  298. 
McFarland  v.  Febiger,  304. 
McHany  v.  Schenk,  572. 
McGan    v.    O'Neil,    602. 
McGarrahan    v.    Mining    Co.,     175, 

179. 
McGinty  v.  McGinty,  334. 
McGoon  v.   Scales,   34. 
McGowan  v.  McGowan,  366. 
McGraw  v.  Bayard,  591. 
McGrew  v.  McCarty,  518. 
McGuire  v.  Van  Pelt,  447. 
McGuire  v.  Stevens,  386. 
Mclntyre  v.   Storey,   58. 
Mclntyre    v.    Mclntyre,    605. 
Mclntire  v.  Benson,  370. 
Mclver  v.    Walker,    183. 
McKinney  v.  Stewart,  39. 
McKinney  v.   Settles,   218. 
McKinzie  v.  Steele,  50. 
McLane  v.  Bovce,  130. 
McLangan   v.   Brown,   570. 
McLaughlin  v.  McLaughlin,  486. 
McLaughlin  v.  McCroby,  597. 
McLaughlin  v.  Thompson,  631. 
McLaughlin  v.  Ihmsen,  441. 
McLaurie  v.  Partlow,  334. 
McLean  v.  In  re,  72. 
McLean  v.  McBean,  661. 
McLouth  v.  Hurt,  79. 
McMicken  v.  U.  S.,   125. 
McMillan  v.  Warner,  26. 
McMillan  v.  Edwards,  344. 
McMullen  v.  Lank,  348. 
McNab  v.  Young,  720. 
McNeil  v.  Kendall,  402. 
McPherson  v.  Rollins,  453. 
McQuiddy  v.  Ware,  692. 
McQuie  v.   Peay,   436. 
McVey  v.   McQuality,   324,   427. 
McWhorter  v.  McMahon,  386. 
Mabury  v.    Ruiz,   617. 
Machemer,  Estate  of,  492. 


liv 


TABLE    OF    CASES. 


Mack  v.  Brown,  596. 
Mack  v.  Wetzler,  420,  449. 
Mackay  v.  Bloodgood,  233. 
Mackie  v.  Cairns,  369. 
Mackie  v.   Story,  463. 
Madden  v.  Barnes,  515. 
Magee  v.  Mellon,  340. 
Maghee  v.  Bobinson,  725. 
Magruder  v.  Esmay,  130. 
Magness  v.  Arnold,  256. 
Magill  v.  Hinsdale,  326. 
Magnolia   v.   Marshall,   54. 
Magruder  v.  Esmay,  130,  163. 
Mahar    v.    O'Hara,    460. 
Mahoney    v.    Middleton,    607. 
Main  v.   Cumston,  413. 
Mandeville    v.    Welch,    386. 
Malcom   v.   Allen,   435. 
Mallory  v.   Fergusen,   11. 
Mallory   v.   Mallory,   292. 
Mallony  v.  Horan,  28,  50,  304. 
Manderschid   v.   Dubuque,   204. 
Mangold   v.    Barlow,    79. 
Mangue  v.  Mangue,  672. 
Mann  v.   Best,   269. 
Manley    v.    Gibson,    205. 
Mansfield   v.   Hoagland,   561. 
Mapes   v.    Scott,    165. 
Marden  v.  Chase,  268. 
Markwell  v.   Thome,  504. 
Markoe  v.  Andras,  516. 
Marling    v.    Marling,    614. 
Marsh  v.   Chestnut,  635. 
Marsh  v.  Griffin,  689. 
Marshall  v.  Marshall,  602. 
Marshall  v.  Roberts,  268. 
Marshall  v.  Rose,  651. 
Marshrnan  v.   Conklin,   549. 
Martin  v.  Ry.  Co.,  286,  321. 
Martin   v.   Wyncoop,   366. 
Martin   v.   Martin,   292. 
Martin  v.   Beasley,   360. 
Martin  v.  Kirby,  476. 
Martin  v.  Dryden,  512. 
Martin  v.  Williams,  555. 
Martin  v.  Judd,   719. 
Martin   v.   Zellerbaeh,   50. 
Martindale  v.   R.  R.  Co.,  313. 


Martinez  v.'  Vives  Succession,  665. 
Marvin  v.  Smith,  28,  305,  334. 
Marvin  v.  Dutcher,  602. 
Marx  v.  Hawthorn,  642. 
Matney  v.  Graham,  343. 
Matthews  v.  Skinner,  310. 
Matthews  v.   Eddy,   573. 
Matthews  v.  Demerritt,   726. 
Mattis   v.   Robinson,   690. 
Mattocks  v.  Brown,  279. 
Mattox  v.  Hightshue,  50,  306. 
Mash   v.    Russell,   438. 
Mason  v.  Osgood,  303. 
Mason  v.  Gray,  422. 
Mason  v.  Ainsworth,  449. 
Mason  v.   Brock,  209,  258. 
Mason  v.  Jones,  463. 
Massie  v.  Watts,  608. 
Massingill  v.   Downs,  533,  535. 
Masterson  v.   Check,   239. 
Mastin  v.  Halley,  254. 
Maunday  v.  Vail,  546,  549. 
Maul  v.  Rider,  79. 
Maurior  v.   Coon,  343. 
Maurr  v.   Parish,  581. 
Maxwell  v.  Hartman,  83. 
Maxwell  v.   Jonesbro,  404. 
Maxwell  v.  Stewart,  538. 
May  v.   Baker,   526. 
Maxbury  v.  Ruiz,  617. 
Mayo  v.  Libby,  46,   169. 
Mayo  v.  Wood,  48. 
Mayo  v.  Foley,  341. 
Meade  v.  Jennings,  472. 
Meach  v.  Fowler,  213. 
Meacham   v.    Steele,    569. 
Meachan   v.   Williams,   76. 
Meader  v.  Norton,  59. 
Meagher  v.  Thompson,   327. 
Mears  v.   Howarth,   589. 
Mechanics   Bid.   Assn.   v.   Whitacre, 

8. 
M.  E.  Church  v.  Hoboken,  57. 
Methodist  Church  v.  Chicago,  634. 
Meek   v.   Bunker,   562. 
Meeker   v.    Meeker,    215. 
Meetze   v.   Padgett,   576. 
Mehan  v.  Williams,  517,  726. 


TABLE    OF    CASES. 


lv 


Megerle  v.  Ashe,   133,   157. 
Melia  v.   Simmons,   582. 
Melvin  v.  Waddel,  694. 
Melvin  v.  Clark,  596. 
Melvin   v.    Whiting,   53,   692. 
Menage  v.  Burke,  211. 
Mendenhall  v.  Treadway,  458. 
Meredith  v.  Little,  546. 
Merriam  v.  Dovey,  643. 
Merrick  v.  Merrick,  466. 
Merrick  v.  Hutt,  526. 
Merrill  v.  Bickford,  491. 
Merrill  v.  Emery,  478. 
Merrill  v.  Burbank,  216. 
Merrill  v.   Burbank,  409. 
Merrill  v.   Hutchinson,   268,   269. 
Merrill  v.  Montgomery,  316,  597. 
Merritt  v.  Merritt,   25. 
Merritt  v.  Disney,  218. 
Merritt  v.  Brantly,  481. 
Messerschmidt  v.  Baker,  577. 
Metcalfe  v.   Brandon,   239. 
Meyer  v.  Graeber,  435. 
Meyer  v.  Fegaly,  553,  554. 
Meyer  v.  McDougal,  662. 
Meyers  v.   Buchanan,  81. 
Meyers  v.  Croft,  130,  131. 
Meyers  v.  Ladd,  223. 
Meyers  v.  Reed,  297. 
Meyers  v.  Anderson,  469. 
Meyers  v.  Rasback,  588. 
Meyers  v.  Tyson,  535. 
Middleton  v.  Smith,  219. 
Middleton  v.  Findla,  231. 
Middleton    Sav.    Bk.    v.    Bacharach, 

560,  637,  638. 
Milford  v.  Worcester,   669. 
Millard  v.  McMullen,  692. 
Miller  v.  Bledsoe,  654,  660. 
Miller  v.   Mills,   596. 
Miller  v.  Ruble,  230. 
Miller  v.  Ware,  264. 
Miller  v.  Thompson,  290. 
Miller  v.  Corey,  384. 
Miller  v.  Flournoy,  466. 
Miller  v.   Handy,   578,   594. 
Miller  v.  Sherry,  521,  523,  525. 
Miller  v.   Aldrich,  434. 


Miller  v.   Wilson,   343,  560. 

Miller   v.  Ewing,  268. 

Miller  v.  Marx,  26. 

Miller  v.  Lapham,  31. 

Miller  v.  Williams,  36. 

Miller  v.  Hepburn,  55. 

Millett  v.  Pease,  596,  597. 

Millikan  v.   Patterson,  643. 

Mills  v.  Hoag,  544. 

Miltmore  v.  Miltmore,  621. 

Miner  v.  Brown,  299. 

Miners  Ditch  Co.  v.  Zellerbach,  316. 

Mines  v.  Mines,  79. 

Mining  Co.  v.  Herkimer,   312. 

Minnesota,   etc.,    Co.   v.   McCrossen, 

328. 
Minot  v.  R.  R.  Co.,  629. 
Mirfitt  v.  Jessop,  469. 
Mitchell  v.  Pettee,  49. 
Mitchell   v.   Mitchell,   279. 
Mitchell  v.   Schoonover,  536. 
Mitchell  v.   Haven,   340. 
Mitchell   v.   Burnham,   448. 
Mitchell  v.  Wood,  531. 
Mitchell   v.   Robertson,  607. 
Mitchell  v.  Williams,  627. 
Mitchell  v.  Bartlett,  237. 
Mix  v.  French,   661. 
Moffat  v.  Carrow,  472. 
Moffitt  v.  Moffitt,  581,  583. 
Mohr  v.  Tulip,  581,  584. 
Moiston  v.  Hobbs,  229. 
Moingona  Coal   Co.  v.  Blair,  695. 
Monaghan  v.   Small,  571. 
Monroe  v.  Jones,  473. 
Montague  v.  Dawes,  356,  446. 
Montgomery  v.  Johnson,  222,   581. 
Montgomery   v.    Dorion,    326. 
Montz  v.  Hoffman,  299. 
Moody  v.   Fislar,  515. 
Moody  v.  Moody,  683. 
Mooers    v.    White,   494. 
Mooney  v.  Cooledge,  225. 
Moore  v.  Jordan,   134. 
Moore  v.   Wilkinson,    160. 
Moore  v.  Robins,  175. 
Moore  v.  Moore,  242. 
Moore  v.  Simmons,  284. 


lvi 


TABLE    OF    CASES. 


Moore  v.  Pickett,  415. 

Moore  v.  Wade,  426. 

Moore  v.  Cornell,  447 

Moore  v.  Neil,  565. 

Moore  v.  Alderman,  623. 

Moore  v.  Burrows,  663. 

Moore  v.  Chandler,  652. 

Moore  v.  Lyons,  476. 

Moore  v.   Giles,   238. 

Moore  v.  Snow,  180. 

Moran  v.  Dillehay,  462,  472. 

Moran  v.   Palmer,   179. 

Morano  v.  Shaw,  8. 

Moreland  v.  Lawrence,  590. 

Morgan  v.  Curtenius,  134. 

Morgan  v.  Clayton,  228,  267. 

Morgan  v.  Bergen,  385. 

Morgan  v.  Pope,  477. 

Morgan  v.  Bause,  560. 

Morgan  v.  Hammett,  425. 

Morice  v.  Bishop  of  Durham,  486. 

Morley  v.  Daniel,  279. 

Morrill  v.  Chapman,  130. 

Morrill  v.  Noyes,  439. 

Morrill  v.  Graham,  744. 

Morris  v.  Candle,   210. 

Morris  v.  McMorris,  242. 

Morris  v.  State,  417. 

Morris  v.  Robey,  559. 

Morris  v.  Halbert,  677. 

Morris  v.  Turnpike  Road,  63. 

Morris  v.  Hogle,  571,  583. 

Morrison  v.  Caldwell,  48,  213. 

Morrison  v.  Rossignol,  399. 

Morrison  v.   Kelly,  74. 

Morrison  v.  Seybold,  298. 

Morrison  v.  King,  727. 

Morrison  v.  Silverburgh,   595. 

Morrow  v.  Weed,  581. 

Morrow  v.  Whitney,  59,   161. 

Morton  v.  Greene,  606. 

Moseley  v.  Mastin,  117. 

Mosley   v.   Wingo,   501. 

Moss  v.  Atkinson,  385. 

Mougbon  v.  Masterson,  437. 

Moulton  v.  Macarty,  551. 

Mounce  v.  Beyers,  389. 


Mount   Pleasant   v.   Breese,   404. 
Mountour  v.   Purdy,  563. 
Mowry  v.  Crocker,  373. 
Mulford  v.  Beveridge,  364. 
Mulford  v.  Peterson,  447. 
Mullanphy   Savgs.    Bank  v.    Schott, 

321. 
Mullins  v.  Aiken,  570. 
Mullins  v.  Sparks,  596. 
Mumford  v.   Whitney,  32. 
Munday   v.   Vail,   546. 
Mundorf  v.   Howard,   394. 
Murdoek  v.  Ward,  473. 
Murfree  v.  Carmack,  536. 
Murphy  v.  Mayor,  etc.,  722. 
Murphy  v.  McGrath,  417. 
Murphy   v.   Hendricks,  432. 
Murry  v.  Blackledge,  211. 
Murry  v.  Lyburn,  522. 
Musgrove  v.  Bonser,  80. 
Mushlitt  v.   Silverman,   516,   519. 
Musick  v.  Barney,  80. 
Musser  v.  Hershey,  186. 
Myler   v.   Hughes,   545. 
Myer  v.  Ladd,  223. 

Nash  v.  Towne,  291. 
National   Bank   v.   Jaggers,   551. 
Neal  v.  Nelson,  248.  ; 

Neal  v.  Speigle,  516. 
Negbauer  v.  Smith,  222. 
Neff  v.  Pennoyer,  579. 
Neiswanger  v.  Gwyne,  632 
Nellis  v.  Lathrop,   690. 
Nelson  v.  Ferris,  447. 
Nevius  v.  Gourley,  481. 
Newell  v.  Nichols,  668. 
Newcomb  v.  Presbrey,  228. 
Newcomer  v.   Wallace,   360. 
Newman  v.  Jenkins,  666. 
Newman  v.  Fisher,  374. 
Newman  v.  Willetts,  504. 
Newton  v.  Fisher,  73. 
Newton  v.  McKay,  211,  212. 
Newsom  v.  Thompson,  283. 
Neufville   v.    Stewart,    415. 
Nichols  v.   Nichols,    143. 


TABLE    OF    CASES. 


lvii 


Nichols  v.  Postletbwaite,  491. 

Nichols  v.  Mitchell,  581. 

Nicholson   v.    Caress,   217,  268. 

Nicol  v.  E.  R.  Co.,  623. 

Niles  v.  Sprague,  669,  671. 

Nixon   v.  Downey,  598. 

Noland  v.  Barrett,  568. 

North  v.  Belden,  440. 

North  v.  Knowlton,  440. 

Norton  v.  Kearney,  370. 

Norton  v.  Reardon,  568. 

Norton  v.  Dow,   595. 

Norris'  Case,  374. 

Norris  v.  Thompson's  Heirs,  486. 

Nowlin  v.  Reynolds,   688. 

N.  W.  Iron  Co.  v.  Mead,  614. 


Orr  v.  O'Brien,  503. 

Osborn  v.  Adams,  34. 

Ostrom  v.  Curtis,  390. 

Osterberg  v.   Union  Trust  Co.,  631. 

Osgood  v.  Blackmore,  564. 

Osgood  v.  Abbott,  226. 

Oswald  v.  Gilfert,  399. 

Ottawa  v.  Spencer,  628. 

Overseers  v.   Sears,   315. 

Owen  v.   Baker,   257. 

Owen  v.  Williams,  279. 

Owen  v.  Reed,  352. 

Owen  v.  Navasota,  559. 

Owens  v.  Miss.  Soc,  487. 

Oxley   v.   Lane,   466. 

Oxnard  v.  Blake,  238. 


Oakes  v.   Williams,  531. 

Oaksmith  v.  Johnson,  694. 

Oates  v.  Beckworth,  693. 

O'Brien  v.  Perry,  129. 

O'Brien  v.   Gaslin,  573. 

Ochoa  v.  Miller,  343,  502. 

Ochiltree  v.  McClurg,  215. 

Odd  Fellow's  Bank  v.  Banton,  441. 

Odiorne  v.  Wade,  52. 

Odell  v.  Montross,  422,  426,  511. 

Odle  v.  Odle,  593. 

O'Gara  v.  Eisenlohr,  666. 

Ogden  v.  Jennings,   31. 

Ogden  v.   Walters,  255. 

Ogden  v.  Walkers,  441. 

Okeson's  Appeal,  490. 

Olcott  v.  Robinson,  563. 

Olds   v.    Cummings,    448,   449. 

Oliver   v.    Crosswell,   614. 

Oliver  v.   Robinson,  630. 

Oliver  v.  Pratt,  268. 

Oliver  v.  Craswell,  614. 

Olney  v.  Hall,  484. 

Olson  v.  Merrill,  54. 

Ommanny  v.  Butcher,  486. 

Or.    &    Wash.    Trust    Co.    v.    Shaw, 

426. 
OrendorfF  v.   Stanberry,  595. 
Ormsby   v.    Terry,    570. 
O'Bourke  v.  O'Connor,  689. 
Orrick  v.  Boehm,  492,  493. 


Packard  v.  Ames,  226. 

Padgett  v.  Lawrence,  211. 

Page  v.  Rogers,  33. 

Page  v.  Palmer,  226. 

Page  v.  Greely,  391. 

Page  v.  Trutch,   744. 

Paige  v.  Chapman,  449. 

Paige  v.  Foust,  474. 

Palmer  v.  Palmer,  239. 

Palmer  v.  Ford,  287. 

Palmyra  v.  Morton,  405. 

Panola   Co.   Sup.   v.   Gillen,  518. 

Pardon  v.  Dwire,   596. 

Paris  v.  Mason,  63. 

Parish  v.  Ward,  657. 

Park  Comm'rs  v.  Armstrong,  64. 

Parker  v.  Foy,  216. 

Parker  v.  Sexton,  633. 

Parker  v.  Parker,  466. 

Parker  v.   Pannlee,  390. 

Parkhurst   v.   Race,   592. 

Parks  v.  Hall,  422. 

Parks  v.   Parks,   463. 

Parks  v.  Jackson,  525. 

Parkinson  v.  Trousdale,  523. 

Parmley  v.  Buckley,  388. 

Parrat   v.   Neligh,   569. 

Parrett  v.   Shabhut,   80,  233. 

Parsol  v.  Stryker,  400. 

Parsell    v.   Thayer,    441. 

Parsley  v.  Nicholson,  549. 


lviii 


TABLE    OF    CASES. 


Parsons  v.  Noggle,  423,  511. 

Parsons  v.  Wells,  615. 

Parsons  v.  Hoyt,  522. 

Parsons  v.  Commissioners,  146. 

Passmore's  Appeal,  476. 

Patch   v.   White,   466. 

Pate  v.  Bushong,  22,  465. 

Patterson  v.   Swallow,  493. 

Payson  v.  Hadduck,  661. 

Peabody  v.  Hewitt,  245. 

Peabody  v.  Brown,  211. 

Peak  v.  Wendel,   129. 

Peak  v.  Ligon,  546. 

Pearse  v.  Pearse,  708. 

Pearson  v.  Bradley,  565. 

Pearsons  v.   Tucker,   519. 

Pease  v.  Pilot  Knob  I.  Co.,  701. 

Peay  v.  Little  Rock,  628. 

Peck  v.  Arehart,  264. 

Peck  v.  Clapp,  725. 

Peckbam  v.  Haddock,  263,  472. 

Pegues  v.  Warley,  689. 

Peine  v.  Weber,  310. 

Pendleton  v.  Button,  236,  258. 

Pennock's  Estate,  488. 

Pensonneau  v.  Bleakley,  326. 

People  v.  R.  P.  Co.,  54. 

People  v.  Lincoln  Pk.  Comrs.,  187. 

People  v.  Marshall,  627. 

People  v.  Bradley,  628. 

People  v.  Biggins,  634,  635. 

People  v.  Snyder,  237,  239. 

People  v.  Gates,  242. 

People  v.  Herbel,  276. 

People  v.  Livingstone,  19. 

People  v.  Conklin,  65. 

People  v.  Ferry  Co.,   186. 

People  v.  Morrill,  186. 

People  v.   Brislin,  545. 

People  v.  Mauran,  623. 

People  v.  Gilbert,  693. 

People  v.  Peat,  634. 

People  v.  Bernal,  596. 

People  v.  Richards,  69,  73. 

People  v.  Circuit  Judge,  364. 

Peoria  v.  Darst,  263. 

Pepper  v.  O'Dowd,  687. 

Perkins  v.  Dibble,  341. 


Perkins  v.  Pitts,  451. 
Perkins  v.  Swank,  689,  725. 
Perry  v.  Big  Rapids,  14. 
Peters  v.  Spillman,  461. 
Peters  v.   Phillips,  386. 
Petition  of  Bateman,   303. 
Petersine  v.   Thomas,   545. 
Peterson  v.  Clark,  428. 
Pettibone  v.  Griswold,  432. 
Pettibone  v.  Hamilton,  605. 
Pettit  v.  Black,  502. 
Pettit  v.  Cooper,  545. 
Peugh  v.  Davis,  420,  427. 
Peyton  v.  Jeffries,  29. 
Phelps  v.   Simons,  298. 
Phelps  v.   Curtis,  369. 
Phillips  v.  Stevens,  397. 
Phillipsburgh    v.    Burch,    461. 
Pick  v.   Strong,   505. 
Pickering  v.  Langdon,  466. 
Piel  v.  Brayer,  559. 
Pierce  v.   Milwaukee,  439. 
Pierre  Mutelle  case,  178. 
Pike  v.  Galvin,  423. 
Pike  v.  Brown,  290,  395. 
Pike  v.  Wassell,  66. 
Pillsubury  v.  Mitchell,  229. 
Pillsbury  v.   Kingon,   368. 
Pingree  v.  McDuffe,  30,  727. 
Pingree  v.  Watkins,  267. 
Pinney  v.  Fellows,  689,  725. 
Pitts  v.  Singleton,  358. 
Pitts  v.  Mesler,  502. 
Plater   v.    Cunningham,   400. 
Plumb  v.  Tubbs,  286. 
Poe  v.  Hardie,  25. 
Pollock  v.  Buie,  555. 
Pollock  v.  Maison,  450. 
Pollard  v.   Hogan,   185. 
Pomeroy  v.  Stevens,  77,  725. 
Pool  v.  Potter,  328. 
Pope  v.  Cutler,  503. 
Poplin  v.  Mundell,  90. 
Port  v.  Port,  672. 
Porter  v.  Sullivan,  272. 
Porter  v.   Purdy,  582. 
Porterfield  v.  Taliaferro,   661. 
Post  v.  Kearney,  399. 


TABLE    OF    CASES. 


lix 


Potter  v.  Stevens,  447. 
Potts  v.  Davenport,  26,  577. 
Powell  v.   Smith,  425. 
Powell  v.  Knox,  532. 
Powell  v.   Rogers,  546,  561. 
Power  v.  Cassidy,  486. 
Powers  v.  Jackson,   199. 
Powder  Co.  v.  Loomis,  517. 
Pratt  v.  Pratt,  423. 
Prescott  v.  Morse,  363. 
Preston  v.  Morris  Case  Co.,  447. 
Preston  v.  Van  Gorder,  631. 
Prettyrnan  v.  Barnard,  548. 
Prettyman  v.  Wilkey,  265. 
Pribble  v.  Hall,  303. 
Price  v.   Osborn,   302. 
Prim  v.  Rabateau,  589. 
Pringle  v.  Dunn,  83,  236. 
Pritchard  v.   Brown,  724,  726. 
Proctor   v.   Bigelow,   671. 
Prouty   v.    Mather,    340. 
Provenchere's   Appeal,   473. 
Providence  v.  Adams,  48. 
Propst  v.  Meadows,  589,  590. 
.Pryor  v.  Downey,  583. 
Pugh  v.  Holt,  422,  428. 
Pullan  v.  R.  R.  Co.,  310. 
Putnam  v.  Bicknell,  211,  296. 
Pryor  v.  Downey,  583. 
Pynehon   v.    Sterns,   260. 

Quimby  v.  Conlan,  602. 
Quinn  y.  Kenyon,  134. 
Quinn  v.  Rawson,  416. 

Racine  v.  Emerson,  206. 
Raines  v.  Walker,  239. 
Raley   v.   Guinn,   643. 
Ramsdell  v.   Ramsdell,  477. 
Rand  v.  Sanger,  475. 
Rand  v.  Meir,  477. 
Randall   v.   Edert,    164. 
Randall  v.   Songer,   599. 
Randolph  v.  Land  Co.,  333. 
Randolph    v.    Carlton,    526. 
Randolph  v.  Metcalf,  538. 
Randolph  v.  State,  70. 
Rankin  v.  Miller,  364. 


Rannels  v.  Rannels,  687. 
Rathgerber   v.   Dupy,   392. 
Rawles  v.  Jackson,  562. 
Rawson  v.  Fox,  686. 
Ray  v.  Thompson,  534. 
Rayburn  v.  Kuhl,  643. 
Raymond  v.  Haider,  691. 
Read  v.  Cather,  488. 
Reasoner  v.  Markley,  439. 
Redden   v.   Miller,   689,   724. 
Reddick  v.  Bank,  599. 
Redfield  Mfg.  Co.  v.  Dysart,  217. 
Reed  v.  Ash,  305. 
Reed  v.  Jones,  387. 
Reed  v.  Bradley,  317. 
Reed  v.  Pelletier,  369. 
Reed  v.  Lukens,  384. 
Reed  v.  Reed,  476,  489. 
Reed's  Appeal,  531. 
Rees  v.  Chicago,  204. 
Reeves  v.  Kimball,  388. 
Reid  v.  Heasley,  343. 
Reid  v.  Shergold,  701. 
Reinders  v.  Kappelmann,  41. 
Reinhart  v.   Schuyler,  634. 
Remington  v.  Linthicum,  574. 
Rhienstrom  v.  Cone,  242. 
Rex  v.  Matherseal,  502. 
Reynolds  v.  Harris,  577. 
Reynolds  v.  Schmidt,  581. 
Reynolds  v.  Scott,  421. 
Rice  v.  R.  R.  Co.,  170. 
Rice  v.  Kelso,  440. 
Rice  v.  Bunce,  50. 
Rice  v.  Lumley,  621. 
Rich  v.  Doane,  422. 
Richards  v.  Green,  26. 
Richards  v.  Miller,  468,  472. 
Richards  v.   Bent,  229. 
Richards  v.  Crawford,  427. 
Richardson  v.  Thompson,  595. 
Richardson  v.   Clow,  216. 
Richardson  v.  Wicker,  559. 
Richeson  v.  Crawford,  514. 
Richmond  v.   Gray,    17. 
Riddle  v.  Bush,  341,  562. 
Ridgeway  v.  Holliday,  690. 


lx 


TABLE    OF    CASES. 


Ridgeway's  Appeal,  553. 
Rigg  v.   Fuller,  692. 
Riggin  v.  Love,  224,  283. 
Riggs  v.  Boylan,  81. 
Rigney  v.  Chicago,  62. 
Rigor  v.  Frye,  32. 
Rindge  v.  Baker,  413. 
Rines  v.  Mansfield,  260. 
Ringhouse  v.  Keever,  659. 
Ripley  v.  Harris,  441. 
Ripley  v.  Gage  Co.,  518. 
Ritchie  v.  Griffiths,  83. 
Rivard  v.  Gardner,  548. 
Rivers  v.  Thompson,  630,  635. 
Rix  v.  Smith,  555. 
Roane  v.  Baker,  536. 
Robins  v.  Bunn,  135. 
Roberts  v.   Clelland,  577. 
Roberts  v.  Roberts,  366. 
Roberts  v.  Bassett,  390,  719. 
Roberts  v.   Stowers,  598. 
Robertson  v.  Wellsville,  58. 
Robertson  v.  Guerin,  340. 
Robertson  v.  State,  672. 
Robinson  v.  Douthitt,  48. 
Robinson  v.  Swift,  590. 
Robinson  v.  Le  Grand,  468. 
Robinson  v.  Bates,  28. 
Robinson  v.  Payne,  224. 
Robinson  v.  Eagle,  297,  298. 
Rockwood  v.  Davenport,  537,  538. 
Roche  v.  Ullmann,  413,  414. 
Roderigas    v.    Savings    Institution, 

582. 
Rodgers  v.  Bell,  607. 
Rodgers  v.  Bonner,  533. 
Rogan  v.  Walker,  226. 
Rogers  v.  Clemmans,   134. 
Rogers  v.  Green,  595. 
Rogers  v.  Sinsheimer,  413. 
Rogers  v.  Renshaw,  26. 
Rollin  v.  Cross,  519. 
Rollin  v.  Pickett,  251,  263. 
Rooker  v.  Perkins,  53. 
Rose  v.  Taunton,   217. 
Roseboom    v.   Masher,    370. 
Roseboom  v.   Roseboom,   477. 
Rosenthal  v.  Renick,  513. 


Rosenthal  v.  Mayhugh,  325. 
Ross  v.  Ross,  41. 
Ross  v.  Sadgbeer,  216. 
Ross  v.  Faust,  54. 
Ross  v.  Barclay,  363. 
Ross  v.  Worthington,  233. 
Ross  v.   Barland,  632. 
Roth  v.  Michalis,  332. 
Rothgerber  v.  Dupy,  516,  519. 
Rowe  v.  Becker,  228,  267. 
Rowley  v.  Beerin,  257. 
Rowley  v.  James,  519. 
Rowlings    v.    McRoberts,    281. 
R.  R.  Co.  v.  Ragsdale,  50. 
R.  R.  Co.  v.  Schurmeir,  57. 
R.  R.  Co.  v.  R.  R.  Co.,  171. 
R.  R.  Co.  v.  Beal,  249. 
R.  R.  Co.  v.  Burkett,  622. 
R.  R.  Co.  v.  R.  R.  Co.,  149. 
R.  R.  Co.  v.  Litchfield,  171. 
R.  R.  Co.  v.  Joliet,  205. 
R.  R.  Co.  v.  Schuyler,  723. 
R.  R.  Co.  v.  Maguire,  633. 
R.  R.  Co.  v.  Kennedy,  223. 
Rucker  v.  Decker,  561. 
Rucker  v.  Dooley,  608. 
Ruckle  v.   Barbour,  573. 
Rudolph  v.  Rudolph,  476. 
Rufner  v.  McConnell,  253. 
Rugg  v.  Hoover,  519. 
Ruigo  v.  Rotau,  169. 
Rusling  v.  Rusling,  602. 
Ruslin  v.  Shield,  238. 
Russ  v.  Wingate,  257. 
Russell  v.  Abstract  Co.,  10,  11. 
Russell  v.  Ransom,  726. 
Russell  v.  Hart,  504. 
Russell  v.  Jackson,  676. 
Russell  v.  Sweezy,  725. 
Russell  v.  Place,  530. 
Russell  v.  Brown,  251. 
Russell  v.  Whitehead,  154. 
Russell  v.  Mandell,  81. 
Ruston  v.  Ruston,  467. 
Rutgers  v.  Hunter,  399. 
Ruth  v.  King,  216. 
Rutherford  v.  Tracy,  199. 
Ruttenberg  v.  Main,  386. 


TABLE    OF    CASKS. 


lxi 


Runyan  v.  Messercan,  449. 
Ryan  v.  Andrews,  37. 
Ryan  v.  Carter,  160. 
Ryan  v.  Carr,  342. 
Ryan  v.  Duncan,  300. 
Ryan   v.   Killpatrick,   695. 
Ryder  v.  Flanders,  304. 
Ryder  v.  Rush,  379. 

Salmon  v.  Vallejo,  229. 
Sammons  v.  Halloway,  242. 
Samuels  v.   Shelton,  342. 
Sanborn  v.  Robinson,  430. 
Sanborn  v.  Chambelin,  574. 
Sanders  v.  Eldridge,  221. 
Sands  v.  Davis,  179. 
Sands  v.  Lynham,  65. 
Sands  v.  Hughes,  686. 
Sanger  v.  Craigul,  76. 
Sansberry  v.  McElroy,   652. 
Sanxay  v.  Hunger,  723. 
Sapp  v.  Wightman,  622. 
Sargent  v.  Howe,  337. 
Saunders  v.  Hart,  51. 
Saunders  v.  Hanes,  218,  263,  283. 
Saunders   v.   Schmaelzle,   221. 
Sawyer  v.   Cox,   89,   192,   319. 
Sayler  v.  Plaine,  23. 
Scammon  v.  Chicago,  565. 
Scammon  v.  Swartwout,  500. 
Scanlan  v.  Wright,  211. 
Scarborough  v.  Smith,  009. 
Scarlett  v.  Gorham,  522. 
Schade  v.  Gehner,  8,  9. 
Schaeffer  v.  People,  631. 
Seharfenburg  v.  Bishop,  254,  255. 
Schettler  v.  Smith,  489. 
Schmedding  v.  May,   74. 
Schmeling   v.   Kriesel,   614. 
Schmucker  v.  Sibert,  290. 
Schnee  v.  Schnee,   182. 
Schneider  v.   Botsch,  694. 
Schneider  v.  Hutchinson,   694. 
Schofer  v.  Reilly,  449. 
Schofield  v.  Homested  Co.,  229. 
School  District  v.   Taylor,  441. 
School   District   v.   Werner,   531. 
Schoot's  Estate,  463,  466. 


Schroeder  v.  Gurney,  609. 
Schulenberg  v.  Harriman,  149. 
Schumucker   v.   Sibert,   290. 
Schumpert  v.  Dillard,  284. 
Schurmier  v.  R.  R.  Co.,  54. 
Scofield  v.  Jennings,  244. 
Scofield  v.  Olcott,  492. 
Scoffin  v.   Grandstaff,  48. 
Scott  v.  Rand,  336. 
Scott  v.  Mann,  366. 
Scott   v.   Simpson,   391,   719. 
Scott  v.  Moore,  589. 
Scott  v.   Bruyn,  686. 
Scott  v.  Elkins,  686. 
Scovill  v.  Griffith,  588. 
Scoville  v.   Hilliard,  610. 
Seckler   v.  Delfs,  449. 
Security  Co.  v.  Longacre,  8. 
Seigneuret   v.   Fahey,   32. 
Seigwald  v.  Seigwald,  477. 
Sellers  v.  Corwin,  533,  535. 
Semple  v.  Bank,  33. 
Sewal  v.  Roberts,  658. 
Seyler  v.  Carson,  264. 
Sevier  v.  Gordon,  663. 
Shackelford  v.  Todhunter,  26. 
Shackleton  v.  Siebree,  279. 
Shanks  v.  Klein,  309. 
Shannon  v.  Hall,  441. 
Shattuck  v.  Hastings,  226. 
Sharp  v.  Spear,  63. 
Shaw  v.  Williams,  565. 
Shaw  v.  Chambers,  588. 
Shays  v.  Norton,  421. 
Sheaf  v.  Wait,  632. 
Shear  v.  Stothart,  58. 
Shearer  v.  Shearer,  309. 
Shearer  v.  Weaver,  005. 
Sheldon  v.  Rice,  300. 
Shepard  v.   Howard,   304. 
Shepard  v.   Shepard,  441. 
Shepardson   v.   Rowland,   306. 
Sheppard  v.  Thomas,  226. 
Sheridan  v.  Andrews,  608. 
Sherlock    v.    Winnetka,    628. 
Sherman  v.  Abbott,  615. 
Sherman  v.  Hogland,  211,   299. 
Sherman  v.  Kane,  690,  694,  720. 


lxii 


TABLE    OF    CASES. 


Sherrid  v.  Southwick,  438. 
Sherwood  v.  Wilson,  456. 
Sherwood  v.  Sherwood,  463. 
Shields  v.  Miller,  343. 
Shields  v.  Roberts,  682. 
Shirk  v.  Gravel  Road  Co.,  560. 
Shivley  v.  Parker,  186. 
Shivers  v.  Simmons,   302 
Shoat  v.  Walker,  649. 
Short  v.   Conlee,   258. 
Shreve's   Case,   471. 
Shrew  v.  Jones,  533,  535. 
Shriver  v.  Shriver,  247,  720. 
Shriver's  Lessee  v.  Lynn,  573. 
Shuffleton  v.  Nelson,  689. 
Shumaker  v.   Johnson,   49. 
Shumway   v.   Holbrook,   502. 
Skinner  v.   Wood,   359. 
Skinner  v.  Fulton,  673,  676. 
Sibley  v.   Waffle,   584. 
Sibley  v.  Smith,  643. 
Siceloff  v.  Redman,  466. 
Sickmon  v.  Wood,  252. 
Sidener  v.  White,  605. 
Sigourney  v.  Larned,  80. 
Sillers  v.  Lester,  439. 
Silliman  v.   Cummings,  303. 
Sillyman  v.  King,  130. 
Simmons  v.   Fuller,   432,   440. 
Simmons  v.   Wagner,    130. 
Simmons  v.  Thomas,   299. 
Sinnett  v.  Cralle,  558. 
Simpson  v.  Pearson,  47,  50. 
Simpson  v.  Neil,   186. 
Simpson  v.  Blaisdell,   221. 
Sims  v.  Rickets,  296. 
Sims  v.  Hammond,  449. 
Skillen  v.  Wallace,  743,  744. 
Skinner  v.  Wood,  359. 
Slater  v.  Breese,  252,  432. 
Slewers  v.   Commonwealth,   9. 
Sloan    v.    Lawrence    Furnace    Co., 

225. 
Sloan  v.  Sloan,  723. 
Slocum  v.  Slocum,  591. 
Slosson  v.  Lynch,  659. 
Small   v.   Slocumb,   242. 
Small  v.  Field,  257. 


Small  v.  Stagg,  516. 

Smiles  v.  Hastings,  412. 

Smiley  v.  Bailey,  476. 

Smith  v.  Holmes,  8. 

Smith  v.  Chenault,  539. 

Smith  v.  Colvin,  561. 

Smith  v.  Block,  219. 

Smith  v.  Crawford,  221,  251,  610. 

Smith  v.  Garden,  236,  259. 

Smith  v.  Van  Gilder,  260. 

Smith  v.  Dall,  235. 

Smith  v.  Jewett,  287. 

Smith  v.  Hutchinson,  474. 

Smith  v.  Rice,  580. 

Smith  v.  Sheely,  313,  315. 

Smith  v.  Bell,  477. 

Smith  v.  Rowland,  515. 

Smith  v.  Bradstreet,  526. 

Smith  v.  Richardson,  602. 

Smith  v.  Bangs,  605. 

Smith  v.  Sherwood,  607. 

Smith  v.  Wood,  614. 

Smith  v.  Messer,  630. 

Smith  v.  Lewis,  639. 

Smith  v.  McConnell,  360,  652. 

Smith  v.  Smith,  663,  666. 

Smith  v.  Robertson,  719. 

Smith  v.  Granberry,  366. 

Smith  v.  Wilcox,  565. 

Smithdeal  v.  Smith,  459. 

Smyth  v.  Taylor,  472. 

Snapp  v.  Pierce,  52. 

Snell  v.  Ins.  Co.,  383. 

Snydacker  v.  Brown,  597. 

Snyder  v.  Palmer,  49. 

Scens  v.  Racine,  628. 

Sohier  v.  Coffin,  288. 

Solomon's     Lodge     v.     Montmallin, 

317,  319. 
Sonfield  v.  Thompson,   235,  258. 
Soulard  v.  United  States,  152. 
Soule  v.  Barlow,  684,  695. 
South    Fort    Canal    Co.    v.    Gordon, 

558. 
Southern  Cal.  Coll.  Assc.  v.  Busta- 

mete,   318. 
Southern  Bank  v.  Humphreys,  547, 

599. 


TABLE    OF    CASES. 


lxiii 


Southern  Pac.  R.  R.  v.  Dull,  151. 

Sower  v.  Philadelphia,  408. 

Spackinan  v.  Ott,  421. 

Spangler  v.  Sellers,  744. 

Spangler  v.  Brown,  744. 

Sparhawk  v.  Buell,  555. 

Sparrow  v.  Hovey,  683. 

Spaulding  v.  Gregg,  279. 

Speakman  v.   Forepaugh,   719. 

Speck  v.  Pullman  Co.,  572,  573. 

Spence  v.  Armour,   571. 

Spencer  v.  Dearth,  530. 

Sperry  v.  Pound,  286. 

Spight  v.  Waldron,  609. 

Splahn  v.  Gillespie,  341,  579. 

Sprig  v.  Moale,  666. 

Springer  v.  Brattle,  268. 

Springer  v.  Shavender,  582. 

Spurlock  v.  Allen,  645. 

Staak  v.  Sigelow,  211. 

Stadler  v.  Allen,  532. 

Stanclifts  v.  Norton,  435. 

Standen  v.   Standen,  480. 

Standish  v.  Lawrence,  413 

Stanley  v.  Risse,  602. 

Stark  v.  Mather,  130. 

Stark  v.  Brown,  695. 

Stark  v.  Starrs,  126,  130,  164,  685, 

690. 
Starkweather   v.   Martin,   232. 
Starkweather  v.  Bihle  Soc,  464. 
Starry  v.  Johnson,  532. 
State  v.  Meagher,  360. 
State  v.  McGlynn,  503. 
State  v.  Ramsburg,  545. 
State  v.  Pepper,  47. 
State  v.  Bradish,  49,  102,  103. 
State  v.  Laverack,  63. 
State  v.  Jennings,  326. 
State  v.  Jersey  City,  408. 
State  v.  Fosdick,  310. 
State  v.  Leffingwell,  312. 
State  v.  Rachac,  73. 
State  v.  Roanoke  Nav.  Co.,  569. 
State  v.  Wallace,  669. 
State  v.  Potter,  669,  G71. 
State  v.  Williams,  671. 
State  v.  Orwig,  607. 


State  v.  Goodrich,  671. 

State  v.  Armington,  671. 

State  v.  Ames,  678. 

St.  Clair  Co.  v.  Livingstone,  54. 

Steel  v.  Kurtz,  39. 

Steel    v.    St.    Louis    Smelting    Co. 
176. 

Steele  v.  Boone,  81. 

Steeple  v.  Downing,  632,  643. 

Steere  v.  Steere,  334. 

Stein  v.  Sullivan,  448. 

Stelz  v.  Shreck,  298,  622. 

Stephens  v.  Reynolds,  394,  401. 

Stephens   v.   Williams,   235. 

Stephens  v.  Evans,  489. 

Stephens  v.  Holmes,  641. 

Stephenson  v.  Wilson,   143. 

Stephenson  v.  Thompson,  342. 

St.  Paul  v.  Ry.  Co.,  694. 

Sterns  v.  Swift,  304. 

Stevens  v.  West3  211. 

Stevens   v.  Bond,   564. 

Stevens  v.  Brooks,  684,  686. 

Stevens  v.  Rainwater,  516. 

Stevens  v.  Harrow,  289. 
Stevens  v.  Hampton,  236. 
Stewart  v.   Stewart,  465,  684. 
Stewart  v.   Pettigrew,    559. 
Stewart  v.  Garvin,  505. 
Stewart  v.  Barrow,  420,  449. 
Stewart  v.   McSweeny,   288. 
Stewartson  v.   Stewartson,  619. 
Stickle's  x\ppeal,  466. 
Stiles  v.  Brown,  237. 
Stillwell  v.  Swarthaut,  558. 
Stinchfield  v.  Little,  326. 
Stinson  v.  Ross,  342. 
Stoddard  v.  Burton,  48. 
Stoddard  v.   Chambers,  175. 
Stoffel  v.  Schroeder,  268. 
Stone  v.  Sledge,  245. 
Stow  v.  Yarwood,  381. 
Stow  v.  Steele,  339. 
Strauss'  Appeal,  389. 
Streeper  v.  Williams,  392. 
Streeter  v.  Streeter,  400. 
Strickland  v.  Draugham,  222. 
Strickland  v.  Kirk,  384. 


lxiv 


TABLE    OF    CASES. 


Stringer  v.  Young,  175,   180. 
Strong  v.  Lehraer,  175. 
Strong   v.   Converse,   290. 
Strother  v.   Lucas,   168,   169. 
Strother  v.  Law,  447. 
Stuart  v.  Harrison,  516. 
Stuart  v.  Walker,  478. 
Stuart  v.  Allen,  360. 
Stubbs  v.  Sargon,  486. 
Stuller  v.  Link,  236. 
Stuphen   v.    Ellis,   503. 
Sturdevant  v.  Matber,  638. 
Styles  v.  Probst,  301. 
Succession  of  Bogere,  661. 
Sullivan  v.  Sullivan,  609. 
Summer   v.  Mitchell,  254. 
Sumner  v.  Parker,  580. 
Sumner  v.  Williams,  228,  340. 
Surgi  v.  Colmer,  559. 
Sutherland  v.  Goodnow,  399. 
Sutton  v.   Schonwald,  570. 
Suydani  v.  Thayer,  473. 
Swan  v.  Benson,  515. 
Swan  v.  Yaple,  449. 
Swann  v.  Lindsey,   149,   168,   169. 
Swartz  v.  Leist,  448. 
Sweat  v.  Corcoran,  175. 
Sweet  v.  Mitchell,  421. 
Swegle  v.  Wells,  602. 
Swink  v.  Thompson,  577.. 
Sydnor  v.  Palmer,  49. 
Sykes  v.  Sykes,  304,  305. 

Taft  v.  Kessell,  390,  719. 
Taggart  v.  Risley,  48,  217. 
Taggart  v.  Murray,  466. 
Talbott  v.  R.  R.  Co.,  291. 
Talbot  v.  Hudson,  63. 
Talbot  v.  Todd,  545. 
Tankard   v.   Tankard,   77.* 
Tapley  v.  Wright,  9. 
Tatum  v.  McClellan,  469. 
Taylor  v.  Wright,  643. 
Taylor  v.  Watkins,  53. 
Taylor  v.  Weston,  136. 
Taylor  v.  Merrill,  614. 
Taylor  v.  R.  E.  Co.,  643. 
Taylor  v.  Preston   228. 


Taylor  v.  Boyd,  546. 

Taylor  v.  Reed,  544. 

Taylor  v.  Dodd,  488,  491. 

Taylor   v.   King,   452. 

Taylor  v.  Sutton,  287. 

Taylor  v.  Brown,  130. 

Taylor  v.  Gilpin,  346. 

Taylor  v.  Phillips,  677. 

Tatum  v.  McClellan,  469. 

Teabout  v.  Daniels,  685. 

Teft  v.  Munson,  423,  424. 

Terrell  v.  Andrew  Co.,  79,  81. 

Terrell  v.  Weymouth,  613. 

Terrett  v.  Taylor,  168. 

Terry  v.  Wiggins,  475,  478. 

Terry  v.  Sisson,  552. 

Terwilliger  v.  Brown,  348. 

Teschemacher  v.  Thomson,  181. 

Teutonia,  etc.,  Co.  v.  Turrell,  237. 

Texas  Land  Co.  v.  Williams,  235. 

Thaley,  in  re,  672. 

Thatcher  v.  St.   Andrews  Ch.,  237. 

Thatcher  v.  Candee,  337. 

Thatcher  v.  Howland,  304. 

Thatcher  v.  People,  633. 

Thayer   v.    Torry,    251,    389. 

Thaxter  v.  Williams,  518. 

Thielman  v.  Carr,  517,  726. 

Third    Ave    R.    R.    Co.    v.    Mayor, 

589. 
Thomas  v.  Clark,  369. 
Thomas  v.  Wyatt,  182. 
Thomas  v.  Bartow,  388. 
Thomas  v.  Goodwin,  368. 
Thomas  v.  Babb,  688. 
Thomas    v.    Industrial    University, 

518. 
Thomas  v.  Desney,  550,  551. 
Thomas  v.  Stickle,  633. 
Thomas  v.  People,  676. 
Thomas  v.  Chicago,  263. 
Thompson  v.  Gregory,  32. 
Thompson  v.  Prince,   156,   169. 
Thompson  v.  Thompson,  213. 
Thompson  v.  Lovrein,  245. 
Thompson  v.  Lambart,  313. 
Thompson  v.  Ludington,  484. 
Thompson  v.  Lee,  552. 


TABLE    OF    CASES. 


lxv 


Thompson  v.  Craighead,  5G9. 
Thompson   v.   Ware,  643. 
Thompson  v.  Pioehe,  684,  688. 
Thompson  v.  Dearborn,  239,  290. 
Thompson  v.  Lyman,  438. 
Thompson  v.   Schuyler,  606. 
Thompson  v.  Felton,  683. 
Thompson  v.  Burhans,  726. 
Thompson  v.  Curtis^  413. 
Thompson  v.  Higginbotham,  417. 
Thorn  v.   Ingram,  363,  572,  573. 
Thornton  v.  Grant,  55. 
Thornton  v.  Irwin,  451. 
Thorp    v.    Keokuk    Coal    Co.,    230, 

269. 
Thrasher  v.  Ingram,  466. 
Thrasher  v.  Bentley,  372. 
Throckmorten  v.  Price,  79. 
Thuleman  v.  Jones,  537. 
Thurman  v.  Cameron,  326. 
Tibbs  v.  Allen,  597. 
Tibbitts  v.  Tilton,  580. 
Tidd  v.  Rines,  129. 
Tilley  v.  Bridges,  569. 
Tillman  v.  Davis,  473,  659. 
Tilton  v.  Hunter,  75. 
Tilton  v.  R.  R.  Co.,  724. 
Timanus  v.  Dugan,  469. 
Tisdale  v.  Ins.  Co.,  668. 
Tobey  v.  Taunton,  48. 
Todd  v.  Philhour,  341. 
Tollenson  v.  Gunderson,  252. 
Tolman  v.  Emmerson,  644. 
Tomlin  v.  McChord,  391. 
Tomlinson  v.  Matthews,  302,  368. 
Thompkins  v.   Fonda,  28. 
Thompkins  v.  Seely,  388. 
Thomkins  v.   Wiltberger,  597,  599. 
Tone  v.  Wilson,  229. 
Torrey  v.  Deavitt,  448,  455. 
Torrey  v.  Cook,  357. 
Tower  v.  Divine,  425. 
Towles  v.  Fisher,  480. 
Townsend  v.   Corning,   327. 
Townsend  v.  Hubbard,  326,  327. 
Townsend  v.  Tallant,  573. 
Townsend  v.  Radclifl',  473,  659. 
Townsend  v.  Reg.  of  N.  Y.,  73. 


Tracy  v.  Kilborn,  481. 

Tracey  v.  Rogers,  518. 

Traynor  v.  Palmer,  253. 

Treadwell  v.  Reynolds,  239. 

Treusch  v.  Shyrock,  519. 

Trim  v.   Marsh,  449. 

Tritt  v.  Roberts,  686. 

Troost  v.  Davis,  588. 

Troy  v.  R.  R.  Co.,  64,  623. 

Truehart  v.  Price,  605. 

Trust  Co.  v.  People,  65. 

Trust  Co.  v.  Shaw,  448. 

Trustees  v.  Beale,  437. 

Trustees  v.  Hovey,  514. 

Trustees  v.  Snell,  564. 

Trustees  v.  Gray,  605. 

Tubbs  v.  Gatewood,  234,  260. 

Tucker  v.  Field,  251. 

Tucker  v.   Whitehead,  503. 

Tufts  v.  King,  77. 

Turner  v.  Smith,  631. 

Turner  v.  Yeoman,  643. 

Turner  v.  Kerr,  426. 

Turner  v.  Ivie,  283. 

Turner  v.  Hoyle,  350. 

Turner  v.  Scott,  496. 

Turner  v.  Jenkins,  548,   599. 

Turner  v.  Watkins,  372,  421. 

Turney  v.   Chamberlain,  683. 

Turpin  v.  Railroad  Co.,  412,  417. 

Tustin  v.  Faught,  231. 

Tuttle  v.   Churchman,   76,   77. 

Twichell  v.  Mears,  291. 

Tyler  v.  Coulthard,  15. 

Tyler  v.  Reynolds,  39,  655,  665. 

Ufford  v.  Wilkins,  252. 
Union  Mill  Co.  v.  Ferriss,  182. 
Union  College  v.  Wheeler,  448. 
Union  Trust  Co.  v.  Weber,  629. 
United  States  v.  Jones,  62,  63. 
United  States  v.  Brooks,   152. 
United    States   v.   Land  Grant    Co., 

182. 
United  States  v.  Fox,  461. 
United  States  v.  New  Orleans,  628. 
United    States    v.    Fitzgerald,    129. 
United  States  v.  Hoar,  693. 


lxvi 


TABLE    OF    CASES. 


United  States  v.  King,  125. 
United  States  v.  Perchman,  152. 
United  States  v.  Stone,  175. 
United  States  v.  Schurz,  33,   178. 
Updike  v.  Tompkins,  461. 
Ury  v.  Houston,  363. 
Utz,   Estate   of,   471. 

Van  Aken  v.  Gleason,  440,  441. 
Van  Antwerp,  In  re,  552. 
Van  Cleaf  v.  Burns,  621. 
Van  Cott  v.  Prentice,  334. 
Van  Courtlandt  v.  Kip,  494. 
Van  Dusen  v.  People,  595. 
Van  Honswyck  v.  Wiese,  496. 
Van  Keuren  v.  R.  P.  Co.,  77,  690. 
Van  Keuren  v.  McLaughlin,  372. 
Van  Meter  v.  McFadden,  389. 
Van  Nostrand  v.  Moore,  466. 
Van  Ransellaer  v.  Smith,  19. 
Van  Pansslaer  v.  R.  R.  Co.,  30. 
Van  Rensselaer  v.  Hays,  396. 
Van  Ransselaer  v.  Gullup,  401. 
Van  Ransselser  v.  Pennimar,  399. 
Van  Riswick  v.  Goodhue,  436. 
Van  Schaac  v.  Robbins,  264. 
Van  Wickle  v.  Calvin,  358. 
Van  Wickle  v.  Landry,  437. 
Vail  v.  Vail,  485. 
Vail  v.  Inglehart,  578. 
Valentine  v.  Rawson,  519. 
Valle  v.  Fleming,  572. 
Vallette  v.  Tedens,  10. 
Vallejo   Land    Ass'n   v.   Viera,   434. 
Vandall  v.  Dock  Co.,  310. 
Vandever  v.  Freeman,  608. 
Vandiver  v.  Roberts,  596. 
Vannatta  v.  Brewer,  397. 
Vancycle    v.    Richardson,    36,    513, 

654,   662. 
Vanzant  v.  Vanzant,  523,  618. 
Vason  v.  Ball,  420,  511. 
Vass  v.  Johnson,  559. 
Vassault  v.  Edwards,  387,  393. 
Vaughan  v.  Bunch,  495. 
Vaughan  v.  Ely,  512,  561,  574. 
Vaughan  v.  Greer,  290. 
Ventress  v.  Cobb,  352,  356,  446. 


Verdin  v.  Slocum,  23. 
Verges  v.  Giboney,  456. 
Vernon  v.  Morton,  369. 
Vernon  v.  Police  Board,  352. 
Vernon  v.  Vernon,   464,  474. 
Videau  v.  Griffin,  327. 
Viele  v.   Judson,   448. 
Vipond  v.  Hurlbut,  229,  270. 
Virden  v.  Needles,  547. 
Voorhees  v.  Frisbie,  374. 
Voris  v.  Renshaw,  226. 

Wacek  v.  Frink,  8. 

Wade  v.  Lindsey,  288. 

Wade  v.  Deray,  223,  ,260,  611. 

Waggoner  t   McLoughlin,   637. 

Wainwright  v.  Tuckerman,  495. 

Wait  v.  Belding,  481. 

Wait  v.  Smith,  79,  320. 

Wakefield  v.  Brown,  246. 

Wakefield  v.  Van  Tassell,  286. 

Wakefield  v.  Bonton,  602. 

Wakefield  v.  Chowen,  8,  10,  102. 

Walbridge   v.   Day,   35. 

Waldron  v.  Tuttle,  671. 

Wales  v.   Bogue,   537. 

Walke  v.  Moody,  560. 

Walker  v.  Matthews,  510. 

Walker   v.   Smallwood,   351. 

Walker  v.  Cary,  548. 

Walker  v.   Goodman,  744. 

Walker  v.  Dement,  44S. 

Walker  v.   Craig,   358,   360. 

Walker  v.  Miller,  381. 

Walker  v.   Summers,  423. 

Walker  v.  Cockey,  435. 

Walker  v.  Dennison,  328,  330. 

Wall  v.  Wall,  496. 

Wallace  v.  Berdell,  238. 

Wallace    v.    Harmstad, '  19,    20,    66, 

653. 
Wallace  v.  Wilson,   130,  439. 
Wallace  v.  Monroe,  532. 
Wallace  v.  Harris,  216. 
Wallach   v.   Van    Riswick,   66. 
Wallbridge   v.   Day,    654. 
Waller  v.   Arnold,  354. 
Wallington  v.  Taylor,  491. 


TABLE    OF    CASES. 


lxvii 


Wallingford  v.  Allen,  296. 
Walsh  v.  Hill,  687. 
Walsh  v.   Kirkpatrick,  551. 
Walter  v.  Arnold,  44-5. 
Walter's  Appeal,  488,  491. 
Walton  v.  Hargroves,  515. 
Walton  v.  Cody,  420,  427. 
Wambough  v.  Sclienk,  666. 
Wangelin  v.  Goe,  605. 
Ward  v.  Mulford,    185,   186. 
Ward  v.  Lumber  Co.,  314,  409. 
Ward  v.  Aniory,  478. 
Ward  v.  Oates,  503. 
Warder  v.  Cornell,  392. 
Ware  v.  Johnson,  344. 
Ware  v.  Wisner,  503. 
Warehouse  Co.  v.  Terrill,  574. 
Warfield  v.  Brand,  358. 
Warneke  v.  Lembea,  358. 
Warner  v.  Bull,  288. 
Warner  v.  Bennett,  287. 
Warner  v.  Bates,  489. 
Warner  v.  Everett,  526. 
Warnock   v.   Harlon,    525. 
Warren  v.  Richmond,  725. 
Warren  v.  Lynch,  231. 
Warren  v.  Blake,   31. 
Warren  v.  Levitt,  177. 
Warren  v.  Chambers,  56. 
Washburn  v.  Cutler,  649,  687. 
Washburn  v.  Burnham,  80. 
Washburn  v.  Burns,  297. 
Washburn  v.  Fletcher,  386. 
Washington  v.  Hasp,  643. 
Waterloo  Bank   v.   Elmore,  425. 
Waterman  v.  Smith,  180. 
WTaters  v.  Bush,   130,   143,   164. 
Waters  v.  Jones,  451. 
Watkins  v.  Hall,  255. 
Watkins  v.  Specht,  348. 
Watkins  v.  Rogers,  389. 
Watson  v.  Water  Co.,  311. 
Watson  v.  Riskmire,  299. 
Watson  v.  Atwood,  643. 
Watson  v.  Tindal,  666. 
Watson  v.  Muirhead,  743. 
Watson  v.  R.  R.  Co.,  623. 
Watson  v.  Hoy,  569. 


Watson  v.  Blackwood,  466. 

Watson  v.  Sherman,  327. 

Watrons  v.  Morrison,  89. 

Watrous  v.  Allen,  227. 

Watt  v.  McGalliard,  564. 

Weaver  v.  Peasley,  562. 

Webb  v.  Peale,  216. 

Webb  v.  Richardson,  686. 

Webber  v.  Townley,  72. 

Weber  v.  Anderson,  689. 

Webster  v.  Conley,  340. 

Weckler  v.  Bank,  311. 

Wedge  v.  Moore,  291. 

Weeks  v.  Milwaukee,  628. 

Weeks  v.  Dowing,   117. 

Weidersum  v.  Xaumann,  591. 

Weir  v.  Lumber  Co.,  726. 

Weis  v.  Aaron,  542. 

Welch  v.  R.  R.  Co.,  42. 

Welch  v.   Dutton,   52,  391. 

Welch  v.  Priest,  449. 

Welch  v.  Phillips,  422. 

Welch  v.  Sacket,  238. 

Wells  v.  Bailey,   54. 

Wells  v.  Pennington  Co.,   151. 

Wells  v.  Atkinson,  234,  259. 

Wells  v.  Jackson  Mfg.  Co.,  687. 

Wells  v.  Wells,  299. 

Wells  v.  Stumph,  596. 

Welsh  v.  Joy,  342. 

Welsh  v.  Huse,  462. 

Welsh  v.  Phillips,  449. 

Welsch  v.  Savings  Bk.,  467,  479. 

Welton  v.  Atkinson,  235. 

Wentworth  v.  Wentworth,  666. 

Westlake  v.  Westlake,  302. 

West   Point    Iron    Co.   v.    Reymert, 

225. 
Wetmore  v.  Parker,  486. 
W7etmore  v.  Laird,  234. 
Wetmore  v.  Wetmore,  620. 
Wetter  v.  Walker,  469. 
Wickle  v.  Calvin,  358. 
Wider  v.  East  St.  Louis,  627. 
Wier  v.  Simmons,  226. 
Wisenor  v.   Lindsay,  364. 
Weisner  v.  Zaun,  48. 


1XV111 


TABLE    OF    CASES. 


Wiggins    Ferry    Co.    v.    R.    R.    Co., 

282,  287. 
Wilder   v.   Brooks,   299. 
Wilcox    v.    Jackson,    34,    126,    144, 

182. 
Wilcox  v.  Bates,  426. 
Wilcoxon  v.  Osborn,  256. 
Wiley  v.  Sirdorus,  225. 
Wiley  v.  Williamson,  448. 
Wilkes  v.  Back,  326. 
Wilks  v.  Burns,  701. 
Wilkins  v.   Tourtellott,   378,   3S1. 
Wilkinson  v.  Elliott,  022. 
Willamette  Co.  v.  Gordon,  502. 
Willamette   Co.  v.   Hendrix,  541. 
Willard  v.  Cramer,  236,  258. 
Williams  v.   Baker,  237. 
Williams  v.   Wisnor,   373. 
Williams  v.  Merritt,  375. 
Williams  v.  Teachey,  450. 
Williams  v.  Jackson,  453. 
Williams  v.  Williams,  487,  672. 
Williams  v.  Chapman,  517. 
Williams  v.  Johnson,  541,  601. 
Williams  v.  Amory,  560,  654. 
Williams  v.  Valkenburg,  598. 
Williams  v.  Downes,  596. 
Williams  v.  Townsend,  638. 
Williams  v.  Kirkland,  643. 
Williams  v.  Ewing,  661. 
Williams  v.  Augusta,  404. 
Williams  v.   Wallace,   682. 
Williams  v.   Rhodes,  366. 
Williams  Estate,  666. 
Williams,  In   re,  503. 
Williamson  v.  Berry,  568,  572. 
Williamson  v.  Jones,  569. 
Williamson  v.  Russell,  637 
Willis  v.  Nicholson,  572. 
Willot,  v.   Sanford,   170. 
Wills  v.  Chandler,  573. 
Wilson  v.  Spring,  337. 
Wilson  v.  Owen,  595. 
Wilson  v.  James,  690. 
Wilson  v.  Reuter,  436. 
Wilson  v.  Wilson,  36,  287,  619. 
Wilson  v.  Thraup,  48. 
Wilson  v.  White.  247. 


Wilson  v.  Carrice,  279. 

Wilson  v.  Spring,  337. 

Wilson  v.   McKenna,  242. 

Wilson  v.  Lyon,  515. 

Wilson  v.  Hunter,  74. 

Wilson  v.  King,  49. 

Wilson  v.  Sexton,  58. 

Wilson's  Exrs.  v.  Van  Leer,  496. 

Winans  v.  Cheney,  222. 

Wing  v.  Dodge,  559,  581. 

Wing  v.  Hall,  649. 

Wing  v.  Cooper,  421. 

Wing  v.  Railey,  287. 

Wingate  v.  Pool,  360. 

Winkler  v.  Miller,  269. 

Winslow  v.  Winslow,  210,  248. 

Winslow  v.  Goodwin,  22. 

Winter  v.  Stock,  210,  309. 

Winter  v.  Crommelin,   175. 

Winter  v.  Jones,  176. 

Winthrop  v.  Fairbanks,  224,  225. 

Wisenor  v.  Lindsay,  364. 

Witham  v.  Brooner,  332. 

Wittenbrock   v.   Wheaton,    133,    135. 

Wheaton  v.  Andress,  473. 

Wheaton  v.  Sexton,  562. 

Wheeler  v.   Smith,  485. 

Wheeler  v.  Hartshorn,  463. 

Wheeler  v.   Spinola,  57. 

Wheeler  v.  Wheeler,  659. 

Wheeler  v.  Clutterbuck,  659. 

Wheeler   v.    Schad,   229. 

Wheeler  v.  Willard,  447. 

Whelan  v.  Sullivan,  386. 

Whetstone    v.     Ottawa     University, 

312. 
Whitaker   v.   Miller,   208,   213,   220, 

237,  248. 
Whitcomb  v.  Rodman,   465. 
White  v.   Whitney,  228,  343. 
White  v.   Hopkins,   279. 
White  v.   Clover,   358. 
White  v.  Clawson,  364,  693. 
White  v.  Rittenmeyer,  422,  511. 
White  v.  Patton.  424. 
White  v.   Foster,  290. 
White  v.  Luning,  222,  338. 
White  v.  Davis,  343. 


TABLE    OF    CASES. 


lxix 


White  v.  Hampton,  83. 

White  v.   Carpenter,    350. 

White  v.  Hermann,  38G. 

White  v.  Aid ; airy,  440. 

White  v.  White,  77,  G91. 

White  v.  Fuller,  726. 

Whitehall  v.  Gottwal,  270. 

Whiteman  v.  Whiteman,  466. 

Whiting  v.  Nicholl,  665. 

Whiting  v.  Butler,  343. 

Whitmore  v.  Larned,  630. 

Whitman  v.  Fisher,  359. 

Whitman   v.    Henneherry,   239,   240, 

611. 
Whitmore  v.  Larned,  630. 
Whitney  v.   French,  450. 
Whitney  v.   Roberts,  589. 
Whitney  v.  Ry.  Co.,  200. 
Whitney  v.  Whitney,  531. 
Whitridge  v.   Taylor,   374. 
Whitsell  v.  Mills,  304. 
Wood  v.  Goodridge,  327. 
Wood  v.  Sampson,  460,  491. 
Wood  v.  Bank,  687. 
Wood  v.  Beach,  216. 
Wood  v.  Morehouse,  559. 
Wood  v.  Myrick,  580. 
Wood  v.  Young,  535. 
Wood  v.  Hurd,  58. 
W7ood  v.  Griffin,  489. 
Woodley  v.  Gilliam,  562. 
Woods  v.  Monroe,  581,  586. 
Woods  v.   Hildebrand,  420,  511. 
Woodbury  v.  Dorman,  439. 
Woodfin  v.  Anderson,  661. 
Woodman  v.  Clapp,  644. 
Woodward  v.  Roberts,  242. 
Woodward  v.  McReynolds,   133. 


Woodward  v.  Harris,  614. 
Woodworth  v.  Payne,  287. 
Woodworth   v.   Raymond,   30. 
Wooliscroft    v.    Norton,    229. 
Wooters   v.  Joseph,  562. 
Word  v.  Douthett,  538. 
Work  v.  Welland,  423. 
Worth  v.  Branson,  129,  131. 
Worrall  v.  Munn,  326. 
Wright  v.  Sperry,  229. 
Wright  v.  Tinsley,  394. 
Wright  v.  Dufield,  303. 
Wright  v.   Howell,  289. 
Wright  v.  Marsh,  610. 
Wright  v.  Walker,  638. 
Wright  v.  Young,  512. 
Wright  v.  Day,  197. 
Wright  v.  Dunn,  467. 
Wylly  v.  Gazan,  249. 
Wyman  v.  Farrer,  225. 

Yackle  v.   Wightman,  547. 
Yahoola  Mining  Co.  v.  Irby,  324. 
Yale  v.  Flanders,  233. 
Yaple  v.  Titus,  542. 
Yard  v.  Murry,  493. 
Yarnall's  Appeal,  471. 
York  v.  Crawford,  596. 
Yosemite  Valley  case,  133. 
Young  v.  Gailbeau,  237. 
Young  v.  Clippinger,  270. 
Young  v.  Young,  296,  493. 
Youse  v.  Forman,  495. 

Zeigler  v.  Hughes,  436. 
Zahnn  v.  Haller,  231. 
Zirkle  v.  McCue,  580. 


ABSTRACTS 

AND 


EXAMINATIONS  OF  TITLE. 


1. 

2. 

Introductory. 
Abstracts  defined. 

§  8. 

3. 

Origin  of  abstracts. 

9. 

4. 

Essentials  of  the  abstract. 

10. 

5. 

The  English  method. 

6. 

The  American  method. 

11. 

7. 

Abstracts     and     examinations 

12. 

distinguished. 

13. 

CHAPTER  I. 

PRELIMINARY  OBSERVATIONS. 

Qualifications  of  the  exam- 
iner. 

Examiner's  liability  for  error. 

Character  of  examiner's  lia- 
bility. 

Duty    of    furnishing   abstract. 

Taxation  of  abstract  books. 

Exemption  of  abstract  books. 

§  1.  Introductory.  Within  comparatively  recent  years 
the  business  of  furnishing  abstracts  of  title  to  real  property  has 
grown  to  enormous  proportions  in  the  United  States,  calling 
for  a  class  of  highly  skilled  conveyancers  with  special  training 
and  qualifications  for  the  work,  while  the  examination  of  titles 
has  practically  created  a  new  department  of  legal  labor.  To 
assist,  in  an  humble  way,  this  large  and  constantly  increasing 
class  of  practitioners,  by  a  statement  of  the  most  approved 
methods  of  compiling  and  arranging  the  abstract,  the  sources  of 
information  and  the  aids  derived  from  indices  and  references, 
together  with  a  brief  review  of  the  general  principles  of  law 
applicable  to  the  examination  of  titles,  will  be  the  object  of 
this  work.     In  the  latter  respect  it  is  necessarily  brief,  and  con- 

1 


2  ABSTRACTS    OF    TITLE. 

sequently  elementary,  and  is  intended  rather  as  a  series  of  hints 
and  suggestions  that  may  incite  the  examiner  to  more  extended 
inquiry,  than  as  a  full  elucidation  of  the  law  on  the  subjects 
discussed. 

§  2.  Abstracts  Defined.  An  abstract  may  be  defined  as 
a  condensed  history  of  the  title  to  land,  consisting-  of  a  synop- 
sis or  summary  of  the  material  or  operative  portion  of  all  of 
the  various  instruments  of  conveyance  which  in  any  manner 
affect  said  land,  or  the  title  thereto,  or  any  estate  or  interest 
therein,  together  with  a  statement  of  all  liens,  charges  or  lia- 
bilities to  which  the  same  may  be  subject,  and  of  which  it  is 
in  any  way  material  for  purchasers  to  be  apprised.  It  is  us- 
ually arranged  in  chronological  order  and  is  intended  to  show 
the  origin,  course  and  incidents  of  the  title  without  the  necessity 
of  referring  to  the  original  sources  of  information. 

§  3.  Origin  of  Abstracts.  Although  the  use  of  abstracts 
of  title  has  now  become  universal,  where  free  alienation  of  land 
is  permitted  and  property  rights  are  recognized,  but  little  can 
be  said  as  to  the  origin  of  the  practice.  The  earliest  English 
works  on  the  subject,  published  during  the  first  half  of  the  last- 
century,  treat  of  the  abstract  as  an  established  fact,  but  make  no 
mention  of  the  period  at  which  it  first  began  to  be  used. 

During  the  earlier  years  of  the  United  States,  but  little  at- 
tention was  paid  to  title  in  purchases  of  real  property.  Ordi- 
narily the  buyer  was  fully  satisfied  with  the  vendor's  "  warran- 
tee "  deed,  the  covenants  thereof  being  taken  as  conclusive  evi- 
dence of  all  they  recited.  No  inquiry  was  made  with  respect  to 
the  past,  present  possession  being  considered  a  sufficient  guar- 
antee of  ownership,  and  no  thought  was  taken  as  to  the  future. 
Transfers  of  land  were  frequently  accompanied  by  the  ven- 
dor's purchase  deeds  and  other  muniments  upon  which  the 
title  was  based,  and  such  may  still  be  the  custom  in  some  parts 
of  the  country.  But,  with  the  flood  of  years,  the  increasing 
commercial  activity  of  the  age,  the  removal  of  property  disquali- 
fications and  other  impediments  to  alienation,  has  come  a  vast 
accumulation  of  evidences  of  title,  frequently  involving  com- 
plex interests  that  call  for  a  high  degree  of  skill  to  arrange  and 


PRELIMINARY   OBSERVATIONS.  3 

classify,  as  well  as  to  interpret  and  adjust.  Land,  too,  in  many 
localities  lias  acquired  an  almost  fabulous  value  and  purchas- 
er's now  part  warily  with  their  money  and  only  on  strong  assur- 
ance of  title.  It  is  no  longer  practical,  save  in  rare  instances,  to 
examine  title  by  specific  inspection  of  the  original  documents, 
were  such  always  available,  or  to  laboriously  follow  on  the  rec- 
ords the  various  mutations  through  which  it  has  passed.  Yet, 
as  purchasers  take  at  their  peril,  save  as  they  may  find  protec- 
tion in  the  covenants  of  their  deeds,  it  is  necessary  that  they 
should  be  apprised  of  whatever  may  affect  the  validity  of  the 
title  or  estate  they  take,  of  which  the  law  charges  them  with 
actual  or  constructive  notice.  To  satisfy  this  demand  has  been 
developed  the  modern  abstract  of  title,  together  with  its  in- 
cident, the  examiner. 

§  4.  Essentials  of  the  Abstract.  Without  going  into 
detail  at  this  time  it  may  be  stated  generally,  that  the  abstract 
should  furnish  all  the  material  information  contained  in  the 
original  documents  and  records  from  which  it  is  compiled,  and 
that,  as  fully  and  completely  as  if  they  had  been  specifically  in- 
spected. It  should  show,  when  from  the  source  of  title,  the 
inceptive  measures;  the  foundation  of  title;  the  devolution  of 
same  to  date  of  examination,  including  all  transfers  of  any 
and  every  interest;  the  incidents  of  the  land  itself,  divisions 
and  subdivisions;  any  and  all  adverse  titles  or  claims;  all  liens 
or  charges,  however  created,  including  judgments  against  the 
person  during  the  period  the  law  makes  them  a  lien  on  land ; 
taxes,  special  assessments,  and  statutory  liens;  and  every  other 
matter  or  thing  appearing  of  record  that  may  affect,  implicate 
or  impair  the  title.  To,  these,  in  proper  cases,  may  be  added 
any  matter  in  pais,  that  to  the  examiner  may  seem  pertinent  or 
material. 

§  5.  The  English  Method.  According  to  Preston,1  it  is 
the  custom  in  England  when  land,  or  other  property  which  does 
not  pass  by  mere  delivery  but  is  held  by  a  title  depending  on 
documental  evidence,  is  sold,  for  the  solicitor  for  the  vendor 

l  1  Preston  on  Abstracts,  1. 


4  ABSTEACTS    OF    TITLE. 

to  prepare  an  abstract  of  the  title,  and  the  solicitor  for  the  pur- 
chaser to  compare  the  abstract  so  furnished,  with  the  deeds, 
wills,  etc.,  that  constitute  the  chain,  to  see  that  it  contains  a 
correct  and  faithful  statement  of  all  circumstances  disclosed  bj 
them  relevant  to  the  title,  or  depending  on  extraneous  facts ;  as 
marriages,  burials,  baptisms,  descents,  etc.  The  abstract  is  pre- 
pared from  the  original  documents,  and  is  delivered  to  the  pur- 
chaser who  founds  on  it  such  "  requisitions  "  by  way  of  fur- 
ther inquiry  or  objection  as  he  thinks  proper;  the  purchaser 
must  then  send  in  his  objections  and  queries  within  a  limited 
time  from  the  date  of  delivery  of  the  abstract,  and  in  default  of 
such  requisitions  or  objections  he  will  be  deemed  to  have  ac- 
cepted the  title.  The  objections  and  queries,  when  made,  are 
answered  by  statements  and  observations,  signed  by  the  solicitor 
or  party  making  them,  and  form  a  part  of  the  abstract.2  The 
method  of  abstracting  the  instruments  and  arranging  the  chain, 
differs  in  no  material  respect  from  that  now  commonly  em- 
ployed in  the  United  States. 

§  6.  The  American  Method.  Aside  from  an  arrange- 
ment of  indexes  and  references,  there  is  no  system  of  title  ab- 
stracts that  can  be  said  to  be  distinctively  American,  the  meth- 
ods varying  somewhat  in  different  sections,  though  preserving 
a  general  similitude.  The  spirit  and  operation  of  our  laws  pre- 
clude the  adoption  of  the  English  methods  to  any  appreciable 
extent,  although  it  would  seem  that  the  abstract  makers  of  the 
Eastern  States  still  follow  as  closely  as  possible  in  the  foot- 
steps of  their  English  predecessors,  and  their  work  is  usually 
constructed  upon  the  regulation  English  model.  In  the  Middle 
and  Western  States,  the  operation  of  the  United  States  land 
laws,  the  later  methods  of  survey  and  subdivision,  and  the  al- 
most total  annihilation  of  many  of  the  old  common-law  rules 
relative  to  the  acquisition  and  transfer  of  estates  in  land,  have 
caused  a  wide  departure  from  the  conventional  system  ex- 
pounded by  Preston,  Moore  and  other  English  writers,  as  well 
as  that  now,  or  formerly,  used  in  the  Colonial   States.     The 

2Peane's  Conveyancing,  325;  Lee  on  AbstraetSj  20. 


PRELIMINARY   OBSERVATIONS.  5 

A  i  nor  lean  abstract  is  not  prepared  from  the  original  documents, 
but  from  recorded  evidences  thereof  found  in  the  offices  of  reg- 
istration, courts,  and  other  legal  depositories,  and,  as  a  rule, 
shows  only  such  title  as  is  deducible  of  record.  It  is  not  identi- 
cal with  the  English  "  abstract,"  as  will  be  seen,  and  by  way  of 
distinction  is  frequently  termed  an  "  examination."  Both 
terms,  however,  are  used  interchangeably  by  the  profession  and 
are  practically  synonymous. 

In  compiling  an  abstract,  the  examiner  simply  collects,  con- 
denses and  arranges  the  information  found  of  record,  without 
any  expression  as  to  the  rights  of  any  of  the  parties  named 
therein.  The  work  is  then  turned  over  to  counsel,  who  critic- 
ally examines  each  instrument  shown,  or  statement  made ;  de- 
cides upon  the  sufficiency  and  legal  effect  of  the  conveyances, 
noting  any  defects  or  irregularities  therein,  or  in  any  of  the 
proceedings  necessary  to  divest  or  acquire  title;  determines  the 
relative  rights  and  legal  relations  of  the  parties  to  the  land  in 
question  and  to  each  other;  and  finally  formulates  his  views 
in  a  written  opinion  which  is  annexed  to  the  abstract,  and  on 
the  strength  of  which  future  sales  or  other  dispositions  of  the 
property  are  usually  made. 

§  7.  Abstracts  and  Examinations  Distinguished.  As 
before  stated  the  terms  abstract  and  examination  in  their  ordi- 
nary acceptation  are  synonymous,  but  for  the  purpose  of  defin- 
ing the  broad  scope  of  their  inquiry,  as  compared  with  the  nar- 
rowness and  singleness  of  the  English  method,  American  ab- 
stract makers  frequently  prefer  the  latter  term  to  designate  their 
work.  The  English  abstract  is  largely  personal  in  its  object. 
That  is,  it  seeks  to  show  only  the  title  of  some  particular  in- 
dividual, rather  than  the  general  condition  of  the  title  and  is 
usually  expressed  in  the  caption  to  be,  "  An  abstract  of  the  title 
of  John  Doe,  Esq.,  to  that  certain  messuage,"  etc.  The  nature 
of  English  land  tenures  and  the  peculiar  conditions  attending 
the  ownership  of  real  property  in  that  country  preclude  a  show- 
ing of  the  origin  or  course  of  title  for  any  considerable  period, 
nor  would  that,  perhaps,  be  necessary.  An  English  abstract 
generally  commences  with  some  specific  document,  as  a  deed 


#  ABSTRACTS    OF    TlTlE. 

or  will,  or  frequently  with  a  descent,  and  from  this  point,  called 
the  "  root  of  title,"  and,  covering  a  period  of  at  least  sixty  years, 
shows  the  successive  links  that  connect  the  present  title  of  the 
person  proposed  with  the  "  root."  3  Obviously,  such  an  abstract, 
however  well  it  might  serve  the  purpose  in  England,  would  be 
most  inadequate  in  the  United  States,  where  several  persons 
frequently  claim  title  through  different  channels  from  the 
same  source,  not  to  mention  the  many  adverse  titles  springing 
from  independent  sources.  "  A  perfect  abstract  of  title,"  says 
Preston,  "  means  a  perfect  title  in  the  vendor,"  and  "  a  condi- 
tion that  vendor  shall  deliver  an  abstract  of  title,  means,"  says 
Sugden,  "  the  delivery  of  an  abstract  showing  a  good  title."  4 
The  American  abstract,  though  confined,  as  a  rule,  to  matters 
of  record,  presents  a  far  wider  range.  While  intended  prima- 
rily to  show  the  present  state  of  the  vendor's  title,  it  does  not  in 
terms  purport  such  purpose,  but  is  a  general  inquiry  into  every 
matter  or  thing  in  any  way  affecting  title  to  the  land,  in  whom- 
soever it  may  rest  and  however  arising  or  acquired.  A  "  per- 
fect abstract,"  as  that  term  is  understood  in  the  United  States, 
shows  the  true  state  of  the  title,  even  though  it  defeats  that  of 
the  vendor,  and  one  that  is  defective  in  any  of  the  particulars 
heretofore  noted  is  not  "  perfect  "  even  though  it  may  show 
"  a  perfect  title  in  the  vendor."  The  caption  of  the  American 
abstract  expresses  its  true  purpose :  "  an  examination  of  title 
to  the  N.  E.  3/4,"  etc. .  It  has  none  of  the  personal  features  that 
characterize  the  English  abstract,  and  is  decidedly  an  examina- 
tion in  rem. 

§  8.  Qualifications  of  the  Examiner.  In  a  recent  Min- 
nesota case,  Elandrau,  J.,  reviewing  the  labor  and  skill  neces- 
sarily displayed  in  the  compilation  of  an  abstract,  says :  "  That 
the  making  of  a  perfect  abstract  of  title  to  a  piece  of  land, 
with  all  the  incumbrances  which  affect  it,  involves  a  great  exer- 
cise of  legal  learning  and  careful  research,  no  one  will  dispute. 
The  person  preparing  such  an  abstract  must  understand  fully 
all  the  laws  on  the  subject  of  conveyancing,  descent  and  inher- 

3Deane's    Conveyancing,    325;     1  4  2  Sugd.  V.  &  P.  27. 

'Preston  on  Abstracts,  5. 


PRELIMINARY   OBSERVATIONS.  7 

itances,  uses  and  trusts,  clevises,  and  in  fact  every  branch  of 
the  law  that  can  affect  real  estate,  in  its  various  mutations  from 
owner  to  owner,  sometimes  by  operation  of  law,  and  again  by 
act  of  the  parties."  5  Should  the  abstract  maker,  or  as  we  may 
term  him  for  short,  the  "  examiner,"  possess  the  varied  accom- 
plishments enumerated  by  the  learned  judge,  he  will  find  it 
much  to  his  advantage  in  the  prosecution  of  his  work,  yet  it 
by  no  means  follows  that  he  may  not  become  proficient  while 
lacking  many  of  the  essentials  above  described.  The  abstract 
maker  is,  in  the  full  sense  of  the  word,  a  conveyancer,  equally 
with  him  who  draughts  and  prepares  the  original  instruments. 
The  difference  is  in  degree,  not  in  kind.  The  same  laws  which 
control  and  direct  the  conveyancer  in  the  preparation  of  the 
originals,  operate  with  equal  effect  in  the  compilation  of  the 
abstract,  and  a  general  knowledge  of  such  laws  and  their  appli- 
cation is  an  indispensable  requisite,  as  are  also  the  piinciples 
of  surveying  and  platting.  The  effect  of  laws  relative  to  con- 
veyancing, the  transfer  of  estates,  the  devolution  of  titles,  and 
the  manifold  and  perplexing  questions  concerning  the  rights 
and  interests  of  parties  that  may  arise  under  them,  are  subjects 
which  should  properly  be  left  to  counsel  who  is  to  examine  the 
abstract  and  pass  an  opinion  upon  the  title.  Occasionally  the 
same  person  fills  both  offices,  though  this  is  rare  save  in  smaller 
places  or  sparsely  settled  districts,  and,  as  a  rule,  the  union  is 
not  productive  of  good  results. 

§  9.  Examiner's  Liability  for  Error.  The  degree  of 
intelligence  and  skill  required  of  a  man  by  the  law,  depends 
much  upon  his  calling.  A  professional  man  must  be  specially 
educated  or  fitted  for  the  duties  of  his  vocation,  and  in  addi- 
tion to  the  requisite  technical  knowledge  must  have  reasonable 
skill  in  its  application.  So  the  understanding  implied  from 
persons  engaged  in  the  business  of  searching  the  public  records, 
examining  titles  to  real  property,  and  making  abstracts  thereof 
for  compensation  is,  that  they  are  possessed  of  the  requisite 
knowledge  and  skill  and  will  exercise  due  and  ordinary  care  in 

5  Banker  v.  Caldwell,  3  Minn.  94. 


8  ABSTRACTS    OF    TITLE. 

the  performance  of  their  duties.6  For  a  failure  in  either  of 
these  respects,  resulting  in  damages,  the  party  injured  is  en- 
titled to  recover.7  JSTor  can  the  examiner  limit  his  liability  by 
a  clause  in  the  certificate  appended  to  the  abstract  without  spe- 
cially calling  his  client's  attention  to  it.s  It  does  not  seem, 
however,  that  the  employment  involves  any  elements  of  guar- 
anty or  indemnity  further  than  that  raised  by  the  undertaking 
to  bring  to  the  discharge  of  the  duty  reasonable  skill  and  dili- 
gence.9 Thus,  he  should  make  a  full  and  true  search;  should 
examine  the  record  of  every  matter  shown  upon  his  own  or 
the  public  indices  which  affects  the  land  in  question ;  should 
accurately  abstract  or  digest  every  instrument  or  other  matter 
so  found  and  should  supplement  his  search  by  an  explicit  state- 
ment or  certificate  of  all  matters  covered  by  it.  He  has  no 
right  to  rely  upon  index  entries  or  marginal  references,  but 
should  inspect  the  record  itself,  and  should  he  assume  the  in- 
formation furnished  by  index  entries  or  marginal  references 
to  be  correct  he  does  so  at  his  peril.10 

But  to  fix  the  liability  of  the  examiner  there  must,  as  a 
rule,  be  privity  of  contract  with  the  injured  party,  for  he  can 
be  held  answerable  for  his  errors  only  to  the  person  who  has 
employed  him,11  and  where,  in  the  absence  of  fraud,  collusion 
or  falsehood,  the  examiner  has  made  an  erroneous  certificate, 
upon  the  strength  of  which  a  third  person  has  loaned  and  lost 
money,  or  suffered  other  injury,  no  liability  will  attach,  not- 

C  Chase   V.    Heaney,    70    111.    268;  26  Minn.  379;   Smith  V.  Holmes,  54 

Lattin  v.  Gillette,  95  Cal.  317.  Mich.    104. 

7  So  held  where  the  examiner  had  8  Chase  V.  Heaney,   70  111.  268. 

omitted  to  note   on   the   abstract   a  0  Dundee  Mtg.  Co.  v.  Hughes,  20 

judgment   against   the   property  for  Fed.   Rep.  39;   Houseman  v.   Girard 

taxes,    and    its    subsequent    sale    to  Loan  Ass'n,  81  Pa.  St.  256;  Sehade 

satisfy  same:      Chase  V.  Heaney,  70  V.  Gehner,  133  Mo.  252. 
111.   268;    and  where   a   pending  at-  10  Waeek  v.  Frink,  51  Minn.  282. 

tachment  suit,  which  afterward  cul-  n  Savings  Bank  v.  Ward,  100  U. 

minated   in   a   judgment,   was   omit-  S.  195;  Dundee  Mtg.  Co.  v.  Hughes, 

ted:      Security   Co.   V.   Longacre,    56  20   Fed.   Rep.   39;    Mechanics'  Bldg. 

Neb.    469;    and   see,    Clark   v.   Mar-  Ass'n    v.    Whitacre,    92    Ind.    547; 

shall.   34   Mo.   429;    Bank  V.   Ward,  Houseman   V.    Bldg.    Ass'n,    81    Pa. 

100  U.  S.  195;  Wakefield  v.  Chowen,  St.  257;   Morano  v.  Shaw,  23  L.  A. 

Ann.  379. 


PRELIMINARY   OBSERVATIONS.  9 

withstanding  the  fact  that  the  money  was  advanced  on  the  as- 
surances of  the  abstract,  and  to  the  person  who  had  caused  the 
same  to  be  made.12  On  the  other  hand,  the  owner  of  land  sel- 
dom incurs  the  expense  of  procuring  an  abstract  of  title  except 
for  the  purpose  of  thereby  furnishing  information  to  some  third 
person  who  is  to  be  influenced  by  the  information  thus  provided. 
Hence,  it  is  contended,  if  the  abstract  maker  shall  in  all  cases 
be  held  responsible  only  to  the  person  under  whose  employment 
he  performs  the  service  it  is  manifest  that  the  loss,  if  any, 
occasioned  thereby,  must,  in  many  cases,  be  without  remedy. 
Acting  upon  this  line  of  reasoning  we  may  observe  a  tendency 
in  some  of  the  cases  to  extend  the  abstracter's  liability  and  to 
give  to  anyone,  who  in  good  faith  relies  upon  the  statements 
of  the  abstract,  a  remedy  against  him  for  any  loss  that  may 
have  resulted  from  his  errors  or  omissions.13  The  general 
rule,  however,  and  that  sustained  by  the  weight  of  authority, 
is  as  first  stated,  and  in  most  of  the  cases  that  may  seem  to 
militate  against  it  there  are  special  circumstances  tending  to 
create  privity,  or  such  other  relation  as  gives  to  the  injured 
third  party  a  right  of  redress.14 

Where  a  cause  of  action  is  permitted  to  lie  against  an  ab- 

12  Savings  Bank  v.  Ward,  100  U.  13  Dickie     v.     Abstract     Co.,     89 

S.   195;   Talpey  v.  Wright,  61   Ark.  Tenn.   431. 

275;     Schade    v.    Gehner,    133    Mo.  14  As     where     a     lender,     before 

252.     In  this  latter  case  the  exam-  making  a  loan,  informs  the  abstract 

ination  having  been  made  for  a  pur-  maker   that   he   will    rely   upon   the 

chaser,    and    under    employment    by  abstract,  and  is  told  by  the  latter 

him,  it  was  held  that  a  right  of  ac-  that   he   may.     Brown   v.    Sims,    22 

tion  for  such  negligence  did  not  ex-  Ind.  App.   317;   and   see  Slewers  v. 

ist    in     favor     of     the     purchaser's  Commonwealth,     87      Pa.     St.      15, 

widow  and  sole  devisee  and  legatee.  where  it  was  said  that  for  the  ac- 

The   court,  referring  to  cases   cited  curacy     and     truthfulness     of     his 

in  support  of  a  contrary  view,  said  search    and    certificate    a    prothono- 

that  they  would   be   found  to   hold  tary  was  responsible  to  the  persons 

that    the    particular    circumstances  who    employed    him    to    render    the 

of  those  cases  brought  the  party  in-  service,     and     not     to    others ;     yet 

jured,  though  not  the  party  directly  where   the   certificate   was   given   to 

employing  the  abstracter,  into  priv-  the  borrower,  but  the  agent  of  the 

ity  with  his  contract,  and  created  a  lender,  not  being  satisfied,  to  ascer- 

duty  to  him  as  well  as  to  his  imme-  tain  whether  the  certificate  was  eor- 

diate  employer.  rect  asked  the  prothonotary  whether 


10  ABSTRACTS    OF    TITLE. 

stracter  who  has  furnished  an  erroneous  search  or  given  a 
wrong  certificate  of  title,  the  right  accrues  at  the  time  of  the 
delivery  of  the  abstract  and  not  at  the  time  the  negligence  is 
discovered  or  the  consequential  damages  may  arise.15  Hence, 
it  would  seem  that  the  statute  of  limitations  may  be  pleaded  in 
defense  when  the  statutory  bar  has  intervened. 

It  has  further  been  held,  that  the  examiner  is  under  no  obli- 
gation to  show  anything  not  arising  within  the  dates  of  his  ex- 
amination, even  though  it  be  at  the  time  a  valid  and  subsist- 
ing lien  upon  the  land;  nor  is  he  bound  to  inquire  or  state 
whether  the  title  vested  in  any  grantee  during  the  period  cov- 
ered by  his  examination  was  affected  by  any  prior  conveyance, 
or  any  estoppel  growing  out  of  any  covenants  therein.16 

As  a  general  proposition,  it  may  be  said  that  the  relation  of 
confidence  which  subsists  between  parties  engaged  in  the  busi- 
ness of  making  abstracts  of  title  and  those  who  employ  them 
is  not  unlike  that  existing  between  attorney  and  client,  and  they 
are  equally  held  to  a  strict  responsibility  in  the  exercise  of  the 
trust  and  confidence  which  are  reposed  in  them.17 

With  respect  to  this  branch  of  our  subject  a  distinction  must 
further  be  kept  in  mind  between  persons  engaged  in  th'e  busi- 
ness of  compiling  abstracts  as  an  ordinary  occupation  and  pub- 
lic officers  who  furnish  same  as  a  part  of  their  official  duty. 
Abstracts  are  frequently  made  by  recorders,  clerks  and  prothon- 

it   was    correct,   and   the   latter   re-  and  see,  Russell  v.  Abstract  Co.,  87 

plied    that    it    was,    and    took    the  Iowa,  233. 

certificate,  and  again  made  the  16  Wakefield  v.  Chowen,  26  Minn, 
search,  and  returned  the  certi-  379.  In  this  case  the  examiner 
ficate  to  said  agent,  saying  that  failed  to  show  a  judgment  rendered 
it  was  correct,  and  that  there  were  against  one  who  at  the  time  (prior 
no  other  judgments,  and  the  agent  to  the  commencement  of  the  exam- 
then,  relying  on  the  certificate,  lent  ination)  had  no  interest  in  the  sub- 
the  money,  it  was  held  that  this  ject  of  the  examination,  but  who 
was  a  republication  of  the  certifi-  subsequently,  and  during  the  period 
cate,  a  renewal  and  delivery  thereof  covered  by  the  search,  acquired  title 
to  the  lender,  and  that  the  officer  to  the  same. 

was  liable  for  his  negligence  in  the  17  Vallette  v.  Tedens,  122  111.  607. 

search.  With  respect  to  the  liability  of  at- 

i5Lattin  v.  Gillette,  95  Cal.  317,  torneys  for  erroneous  opinions,  see 

Chap.  XXXII,  post. 


PRELIMINARY  OBSERVATIONS.  11 

otaries,  and  in  some  States  their  liability  is  prescribed  and 
regulated  by  statute.  Under  these  statutes  such  officers  are 
often  declared  liable  for  all  loss  or  damage  which  may  happen 
by  reason  of  any  false  or  erroneous  certificate  of  search,  not 
only  to  the  person  or  persons  to,  for,  or  upon  whose  order  the 
said  certificate  was  made  or  given,  but  also  to  any  person  claim- 
ing title  through,  from  or  under  them,  or  who  may  suffer  loss 
by  reason  of  the  making  of  such  false  or  erroneous  certificate. 
But  where  an  officer  is  not  bound  to  make  searches  of  the  rec- 
ords of  his  office  his  liability  would  seem  to  be  measured  by 
the  same  rules  that  apply  to  abstracters  generally.18 

§  10.  Character  of  Examiner's  Liability.  There  exists 
some  confusion  with  respect  to  the  character  of  the  liability  of 
an'  examiner  who  has  made  an  erroneous  search  resulting  in 
injury  to  the  client,  as  well  as  to  the  remedies  that  may  be  re- 
sorted to  in  such  a  case.  The  better  opinion,  however,  and  that 
which  seems  to  be  supported  by  legal  reason,  is  that  such  lia- 
bility is  strictly  contractual,  and,  notwithstanding  that  the  ex- 
aminer may  have  violated  a  duty  which  he  owed  to  the  client. 
and  that  such  violation  was  an  act  of  culpable  neglect,  yet  such 
neglected  duty  was  alone  imposed  by  the  contract  and  does  not 
involve  a  tort  in  the  proper  interpretation  of  that  term.  Upon 
an  undertaking  of  this  kind  the  examiner  owes  no  duty  to  the 
client  apart  from  the  contract,  and  the  fact  that  the  contractual 
act  has  been  negligently  performed  does  not  change  the  situa- 
tion or  alter  the  relation  of  the  parties.19 

§  11.  Duty  of  Furnishing  Abstract.  In  England  a  pur- 
chaser may,  it  seems,  require  to  be  furnished  with  an  abstract 
of  the  seller's  title,  even  though  he  may  have  already  agreed 

is  Thus,  a  clerk  of  court,  not  be-  Iowa,  233,  and  see,  Thomas  v.  Car- 
ing bound  to  make  searches  of  the  son,  46  Neb.  765,  where  it  is  held, 
records  of  his  office  for  liens,  is  not  that  an  abstracter  who  gives  an  ab- 
liable  to  one  who  purchased  land  on  stract  which  recites  that  the  ab- 
the  faith  of  his  certificate  errone-  stracter  has  carefully  examined  the 
ously  stating  that  there  were  no  records  of  the  offices  of  the  county 
liens  against  it.  Mallory  v.  Fergu-  clerk,  the  clerk  of  the  district  court, 
son,  50  Kan.  685.  and  the  county  treasurer,  and  that 

19  Russell    v.     Abstract    Co.,    87  there  were  of  record  in  said  offices 


12  ABSTRACTS    OF    TITLE. 

to  accept  the  same,  and  lie  may  retain  such  abstract  during  the 
negotiations  upon,  and  even  after  rejection  of,  the  proffered 
title,  until  the  dispute  is  finally  settled,  for  the  purpose  of  show- 
ing the  grounds  of  such  rejection.20  It  will  be  remembered, 
however,  that  an  English  abstract  is  generally  only  a  digest  of 
the  title  deeds  and  muniments  relied  on  by  the  vendor  to  es- 
tablish his  claim,  and  which  invariably  accompany  the  abstract 
for  examination  and  comparison.  The  abstract  so  furnished, 
therefore,  is  rather  in  the  nature  of  a  well-arranged  index  to 
accompany  documents,  and  is  prepared  primarily  for  their  more 
convenient  and  systematic  perusal.  An  American  abstract,  on 
the  contrary,  is  intended  to  furnish  within  itself  a  full  expo- 
sition of  title,  and  to  obviate  the  necessity  of  referring  to  the 
original  sources  of  information.  In  the  former  case  the  deeds 
and  muniments  are  in  the  hands  or  under  the  control  of  the 
vendor,  and  the  reason  of  the  English  rule  is  obvious  from  this 
fact  alone.  But  in  the  United  States  the  changed  conditions  of 
the  evidences  of  title,  the  system  of  registration,  the  actual  and 
constructive  notice  imparted  thereby,  and  the  access 
which  the  purchaser  has  to  information  concerning  the  title, 
would  seem  to  render  inoperative  the  English  rule  by  remov- 
ing the  reason  which  occasioned  it;  and,  while  it  is  customary 
in  this  country,  as  in  England,  for  the  vendor  to  prepare  and 
furnish  an  abstract  of  title,  either  pending  or  after  consumma- 
tion of  the  sale,  it  does  not  appear  that  this  can  be  demanded 
as  a  matter  of  right,  but  is  rather  the  result  of  the  contract  or 
conditions  of  sale. 

In  England,  where  titles  are  not  registered,21  the  vendor,,  in 

no  liens  on  the  property  except  as  20  See  2  Sugd.  Vend.  *39;  Dart, 
mentioned  in  the  abstract,  is  not  Vend.  (Am.  Ed.)  130. 
liable  on  his  bond  because  of  the  21  Certain  kinds  of  deeds,  as  a 
omission  from  the  abstract  of  a  bargain  and  sale,  were  by  an  early 
prior  mortgage  of  record  in  the  statute  required  to  be  "  enrolled." 
office  of  the  register  of  deeds,  Of  late  years  registration  has  be- 
though  the  omission  was  the  result  come  more  general  but  there  is  no 
of  a  conspiracy  to  defraud  between  system  in  vogue  in  that  country 
the  abstracter,  the  mortgagor,  and  which  corresponds  with  that  ob- 
the  prior  mortgagee.  served  in  the  United   States. 


PBELIMINARY  OBSERVATIONS.  13 

order  to  show  performance  or  an  offer  to  perform  on  his  part, 
whether  in  an  action  at  law  for  the  purchase  money  or  a  suit 
in  equity  to  compel  performance  by  the  vendee,  must  affirma- 
tively prove  his  title.  In  this  country,  where  titles  are  matters 
of  record,  and  at  all  times  open  for  inspection,  a  different  rule 
prevails.  This  doctrine  has  often  been  announced  in  actions 
by  the  vendor  for  the  purchase  money,22  and  it  has  been  ex- 
pressly held,  in  equity,  that  a  vendor  may  rely  upon  his  tender 
of  conveyance  without  producing  the  evidences  of  his  title,  the 
burden  being  upon  the  purchaser  to  show  such  a  defect  as  would 
justify  him  in  refusing  to  accept  the  deed.23 

But  while  the  furnishing  of  an  abstract  can  not  be  said  to  be 
deinandable  as  a  matter  of  legal  right,  even  where  a  custom  to 
that  effect  may  prevail,  it  is  nevertheless  made  a  condition  pre- 
cedent, in  most  sales,  by  the  express  agreement  of  the  parties. 
Where  parties  make  a  contract  for  the  sale  or  exchange  of 
lands  which  provides  for  the  exhibition  of  an  abstract  showing 
title  in  the  proposing  parties  by  a  day  named,  this  is  a  condi- 
tion precedent  to  be  performed  before  either  party  in  case  of 
an  exchange,  or  the  vendor  in  case  of  sale,  can  call  upon  the 
other  to  perforin  the  agreement ;  and,  if  the  abstract  is  not  sat- 
isfactory or  fails  to  show  the  title  agreed  to  be  made,  the  other 
may  elect  to  consider  the  contract  at  an  end.24 

If,  on  the  sale  of  land,  it  devolves  on  the  vendor  to  furnish 
an  abstract,  on  the  delivery  and  acceptance  of  the  deed  it  be- 
comes the  property  of  the  purchaser,25  and  so,  where  the  owner 
of  land,  about  to  execute  a  mortgage,  delivers  to  the  mortgagee 
an  abstract  of  title  to  the  premises,  it  becomes  part  of  the  se- 
curity for  the  loan,  and  the  mortgagor  is  not  entitled  to  the 
possession  of  it  until  the  mortgage  is  paid  or  discharged.26 

§  12.  Taxation  of  Abstract  Books.  Are  the  indices, 
and  other  books  of  the  examiner,  employed  by  him  in  the  prep- 

22  Little  v.  Paddleford,  13  N.  H.  24  Howe  V.  Hutchison,  105  111. 
1G7.  501. 

23  Espy  v.  Anderson,  14  Pa.  St.  25  Chapman  v.  Lee,  55  Ala.  616. 
308;  Daily  v.  Litchfield,  10  Mich.  26  Holm  v.  Wust,  11  Ab.  Pr. 
38.  (N.  Y.)   N.  S.  113. 


14  ABSTRACTS    OF    TITLE. 

aration  of  abstracts,  subject  to  taxation  ?  Unfortunately,  the 
question  lias  not  received  a  uniform  answer  from  the  several 
courts  to  which  it  has  been  presented.  There  is  no  dispute 
with  respect  to  the  general  proposition  that  unpublished  manu- 
scripts are  not  subject  to  taxation,  but  the  difficulty  seems  to  lie 
in  the  character  to  be  accorded  to  such  manuscripts.  The  stat- 
ute, generally,  requires  that  all  property  shall  be  returned  and 
assessed  at  its  fair  cash  value,  except  in  the  case  of  specific 
exemptions.  Abstract  books  are  certainly  property.  But,  it 
is  said,  the  provision  of  the  statute  means,  not  only  a  thing  that 
may  be  put  to  valuable  uses,  but  that  which  has  a  recognizable 
pecuniary  value  inherent  in  itself,  which  is  not  enhanced  or 
diminished  according  to  the  person  who  owns  or  uses  it.  Hence, 
it  is  contended,  abstract  books  have  no  intrinsic  value.  They 
are  valuable  only  for  the  information  they  contain,  which  is 
conveyed  by  consultation  or  by  extracts,  and  such  value  is 
maintained  only  by  their  completeness  and  continued  correc- 
tion. Indeed,  except  as  they  are  used  they  have  no  value.27 
It  is  further  held,  that  they  resemble  in  their  nature  the  books 
which  are  consulted  by  any  person  who  makes  an  income  from 
his  acquired  knowledge,  as  a  surveyor's  notes,  a  lawyer's  briefs, 
a  druggist's  recipes,  and  many  analogous  things.  Therefore, 
while  they  may  be,  and  are,  very  serviceable,  yet  they  are  not 
things  which  the  law  makes  subject  to  seizure  or  assessment.28 
On  the  other  hand,  we  find  cases  which  hold  that  notwith- 
standing abstract  books  are  manuscripts  and  are  not  made  for 
publication  in  the  general  sense,  and  which  concede  that  such 
publication  would  defeat  the  very  purpose  of  their  production, 
yet  maintain  that  they  are  the  means,  in  a  sense  the  instru- 
ments, for  carrying  on  a  business ;  that  they  have  a  commercial 
value,  and  that  where  a  commercial  value  attaches  to  an  object  it 
becomes  property;  that  being  property  they  come  within  the 
terms  of  the  statute,  and,  like  other  property  not  specifically 
exempt  are  subject  to  the  burdens  of  taxation.29 

27  Perry  v.  Big  Rapids,  67  Mich.       399;   Perry  V.  Big  Rapids,  67  Mich. 
146.  146. 

28  Dart  v.   Woodhouse,   40  Mich.  29  Leon  Loan,  etc.,  Co.  v.  Equali- 


PRELIMINARY    OBSERVATIONS.  iO 

It  will  be  seen,  therefore,  that  the  question  is  one  of  doubt, 
to  be  solved  by  local  policy  or  positive  law. 

§  13.  Exemption  of  Abstract  Books.  Analogous  to  the 
question  discussed  in  the  last  paragraph  is  the  further  question: 
To  what  extent,  if  any,  are  the  books  used  by  an  examiner  of 
titles  in  his  business  exempt  from  forced  sale  on  execution? 
To  this  question  no  decisive  answer  can  be  given.  It  is  entirely 
a  matter  of  local  law  and  statutory  construction.  In  those 
States  where  the  statute  exempts  the  necessary  tools  and  instru- 
ments of  "  any  person,"  used  in  his  trade  or  business,  or  by 
other  general  terms  includes  all  kinds  of  occupations  and  the 
means  whereby  such  occupations  are  pursued,  the  books  of  an 
abstract  maker  will  be  exempt.30  On  the  other  hand,  in  those 
States  where  the  exemption  privilege  is  specifically  confined  to 
certain  classes  of  occupations,  unless  the  business  of  abstract 
making  distinctly  falls  within  one  of  the  enumerated  classes 
the  books  used  in  such  business  are  not  distinguishable  from  other 
non-exempt  property,  and  may  be  seized  and  sold  to  satisfy 
a  judgment  against  the  owner.31 

zation  Board,  86  Iowa,   127;   Booth  31  See,    Tyler    v.    Coulthard,    95 

r.  Phelps,  8  Wash.  549.  Iowa,  705;  Bank  V.  Abstract  Co.,  15 

30  Davidson   V.   Sechrist,   28   Kan.  Wash.  487. 
324. 


CHAPTER  II. 

TITLE    TO    EEAL    PROPERTY. 

§  14.     Estate      and      title      distin-  §21.  Powers. 

guished.  22.  Homesteads. 

15.  Acquisition  of  title.  23.  Dower  and  curtesy. 

16.  Classification  of  title.  24.  Terms  of  years. 

17.  Sources  of  title.  25.  Easements  and  servitudes. 

18.  Nature  of  title  in  the  United  26.  Color  of  title. 

States.  27.     Evidence  of  title. 

19.  Estates  under  allodial  titles.  28.     Alienation  and  descent. 

20.  Uses  and  trusts. 

§  14.  Estate  and  Title  Distinguished.  A  well  defined 
and  strongly  marked  distinction  has  been  made  by  the  elemen- 
tary writers,  between  the  property  or  interest  which  one  has 
in  lands,  tenements  and  hereditaments,  and  the  authority 
whereby  same  are  held,  or  the  mode  by  which  they  are  ac- 
quired. This  property  or  specific  degree  of  interest  in  lands, 
of  whatever  kind  or  nature,  is  described  in  the  comprehensive 
term  estate.  The  method  of  acquiring  and  right  of  holding 
same  is  denominated  title.  The  subject  of  estates,  with  their 
quantities,  qualities,  extent  and  other  attributes,  belongs  to  a 
treatise  on  real  property,  and  will  be  alluded  to  in  this  work 
only  as  they  incidentally  occur  in  treating  of  the  manner  by 
which  such  estates  are  acquired  or  held. 

In  the  paragraphs  immediately  following  a  brief  mention 
will  be  made  of  the  fundamental  principles  and  broad  special- 
ized rules  which  affect  the  transfer  of  proprietary  rights  in 
land  and  the  devolution  of  title  thereto,  and  which  are  inci- 
dentally involved  in  the  compilation  of  abstracts  and  examina- 
tion of  titles. 

§  15.  Acquisition  of  Title.  It  may  be  stated  as  an  ele- 
mentary proposition,  to  which  all  writers  and  jurists  agree,  that 
there  exist  but  two  modes  of  acquiring  title  to  real  property: 

16 


TITLE    TO    EEAL    PROPERTY.  17 

namely,  by  descent  and  by  purchase,  the  latter  term  including 
every  legal  method  of  acquisition,  except  that  by  which  an 
heir,  on  the  death  of  an  ancestor,  succeeds  to  the  estate  of  the 
latter  by  operation  of  law.1  The  common  law  estates  of  dower 
and  curtesy  have  been  regarded  by  some  writers  as  properly 
coming  within  the  doctrine  of  descents,2  while  others  make  a 
distinction,  in  respect  to  estates  acquired  by  purchase,  between 
titles  created  by  act  of  the  law,  and  those  created  by  act  of 
the  parties.3 

§  16.  Classification  of  Title.  Blackstone  makes  an 
elaborate  division  of  title  considered  in  relation  to  its  progress- 
ive development,  and  formulates  the  following  stages :  Naked 
possession ;  right  of  possession ;  right  of  property  without  pos- 
session, and  right  of  property  united  with  possession.4  This 
classification,  which  has  been  followed  and  approved  by  most 
English  and  many  American  writers,  seems  needlessly  prolix 
and  a  trifle  confusing.  Judge  Walker  in  alluding  to  it  says: 
"  Such  refinements  serve  to  perplex  rather  than  inform  the 
mind.  The  truth  is,  title  means  the  same  thing  as  ownership. 
A  man  may  be  in  possession  of  a  thing  which  he  does  not 
own,  and  he  may  own  a  thing  of  which  he  is  not  in  possession," 
and  draws  the  inference  "  that  the  perfection  of  title  consists 
in  the  union  of  possession,  with  the  right  of  possession."  5 

For  purposes  of  comparison  only,  titles  are  sometimes 
classified  as  bad,  doubtful,  good  and  perfect ;  the  latter  being 
also  known  as  a  marketable  title,  or  one  which  a  court  of  equity 
considers  so  clear  that  it  will  enforce  its  acceptance  by  a  pur- 
chaser. A  doubtful  title  on  the  contrary  being  one  that  the 
court  will  not  go  so  far  as  to  declare  invalid,  but  only  that  it 
is  subject  to  so  much  doubt  that  a  purchaser  ought  not  to  be 
compelled  to  accept  it.G     The  doctrine  of  marketable  titles  is 

1  2     Blk.     Cora.     241 ;     James    v.  4  2   Blk.   Com.    195. 
Moore,  2  Cow.  290;   Green  v.  Blan-           5  Walker's   Am.   Law,   317. 

char,  40  Cal.   194.  6  2    Bou.    Law    Diet.    596;    Rich- 

2  3  Cruise  Dig.   317.  mond  V.  Gray,  3  Allen,  25. 

3  See  3  Wash.  Real  Prop.  4;  War- 
velle,  Real  Prop.  130. 

2 


18  ABSTRACTS    OF    TITLE. 

purely  equitable  and  of  modern  origin ;  at  law,  every  title  not 
incurably  defective  is  marketable.  It  must  be  distinctly  under- 
stood, however,  that  the  foregoing  classification  represents 
merely  convenient  colloquialisms.  The  law  knows  nothing  of 
"  good  "  or  "  bad  "  titles.  In  fact,  they  cannot  be  said  to  have 
any  legal  existence.  Title  is  simply  title.  A  person  is  with- 
out title  or  he  has  title..  His  title  may  be  perfect  or  impaired, 
but  ft  bad  "  title  is  merely  a  vulgarism.  The  fact  that  many 
lawyers  employ  the  term  does  not  make  it  any  the  less  a  vul- 
garism. Nor  are  there  any  degrees  of  comparison  in  titles,  for 
"  good  "  title  suggests  a  "  better,"  or,  possibly,  a  "  best." 

A  more  pronounced  distinction  is  made  in  the  case  of  legal 
and  equitable  titles,  and  their  application  to  estates  is  of  fre- 
quent occurrence  in  actual  practice.  Though  originally  ap- 
plied only  to  estates  in  land,  the  terms  are  now  extensively  used 
to  designate  the  manner  of  acquiring  and  holding  same  as  well. 
The  equitable  title  usually  carries  with  it  the  beneficial  inter- 
est in  the  land,  together  with  the  incidents  of  ownership,  the 
legal  title  being  held  as  a  mere  naked  trust,  and  is  illustrated 
in  the  relations  of  the  government  and  a  purchaser  of  public 
land  before  patent  issues ;  a  grantee  under  a  land  contract  after 
payment  made  and  before  execution  of  deed.  Where  a  trust 
imposes  active  duties  on  the  trustee  he  takes  the  entire  interest 
in  the  land  and  the  beneficiary  has  no  title  of  any  kind.  The 
abstract,  as  a  rule,  shows  only  the  legal  title,  unless  an  equitable 
title  appears  from  the  recitals  of  the  instruments  or  is  plainly 
deducible  from  facts  appearing  on  their  face. 

§  17.  Sources  of  Title.  By  a  fiction  of  the  English  law, 
the  king,  as  the  head  and  sovereign  representative  of  the  na- 
tion, is  regarded  as  the  original  proprietor,  or  lord  paramount 
of  all  the  land  in  the  kingdom,  and  the  true  and  only  source 
of  title.7  From  him  all  the  lands  in  the  realm  are  held,  either 
mediately  or  immediately,  by  a  tenure,  of  which  fealty  is  the 
great  characteristic.  Under  the  feudal  system  this  element  of 
fealty  was  inseparably  incident  to  the  reversion,  which  could 
never  be  lost  to  the  ultimate  lord. 

7  3    Kent    Com.    487;    2    Blacks.    Com.  51. 


& 


TITLE.   TO    KEAL    PKOPERTY.  19 

Tlio  feudal  system  contemplated  a  prince  —  the  sovereign, 
and  the  people  —  the  subjects,  but  with  the  assumption  of 
American  independence,  the  people  in  their  collective  capacity 
became  sovereign,  and  as  such  succeeded  to  the  rights  and  pre- 
rogatives formerly  possessed  by  the  king.  As  a  consequence 
all  valid  individual  title  to  land  in  the  United  States  is  de- 
rived only  from  the  grant  of  the  Federal  government,  in  the  case 
of  public  lands;  from  the  State  governments  of  such  of  the 
States  as  entered  the  Union  as  sovereign  bodies  possessed  of 
lands;  or,  from  foreign  powers  prior  to  the  Revolution,  or  the 
subsequent  acquisition  of  the  territory  by  the  government,  the 
vested  rights  of  the  land  owner  being  recognized  in  the  latter 
case  by  treaty  stipulations  at  the  time  of  the  cession,  or  by 
subsequent  confirmation.8  The  king  not  only  possessed  the 
original  but  also  the  ultimate  title,  an  assumption  that  has 
never  been  made  by  the  Federal  government,  which  parts  with 
all  its  title  by  its  grant  or  patent.  The  people  of  the  States, 
however,  in  their  sovereign  capacity,  are  declared  to  possess  the 
ultimate  property  in  and  to  all  lands  within  the  jurisdiction  of 
the  State,  the  title  to  which  shall  fail  from  defect  of  heirs,® 
though  the  character  in  which  the  State  takes  is  not  properly 
that  of  a  reversioner  but  rather  that  of  a  statutory  heir,  who 
succeeds  to  the  property  on  default  of  known  kindred  of  the 
decedent.10 

§  18.  Nature  of  Title  in  the  United  States.  When  by 
the  Revolution,  the  domination  of  the  mother  country  was 
thrown  off,  the  State,  in  its  sovereign  capacity,  succeeded  to  the 
titles  of  the  king  and  became  the  proprietor  of  all  the  lands.11 
But  instead  of  lending  them  like  a  feudal  lord  to  an  enslaved 
tenantry,  it  sold  them  for  the  best  price  they  would  bring,  or, 
with  more  than  princely  generosity,  conferred  them  upon  its 
citizens  as  a  reward  for  industry  and  courage  in  the  develop- 

8  3  Kent  Com.  488;  Jackson  v.  In-  10  Wallace   v.    Harmstad,   44    Pa. 
graham,    4   Johns.    163;    Jackson   v.       St.   492. 

Hart,   12  Johns.  77.  H  Commonwealth  v.  Alger,  Cush. 

9  3    Kent    Com.    4S8;     People    v.       82;   Johnson  v.  Mcintosh,  8  Wheat. 
Livingston,  8  Barb.  253.  584. 


20  ABSTRACTS    OF    TITTE. 

ment  and  settlement  of  the  country,  or  in  recognition  of  valor 
and  patriotic  devotion  in  its  defense.  Its  patents  all  acknowl- 
edge a  pecuniary  or  valuable  consideration,  and  stipulate  for  no 
fealty  or  other  feudal  incident.  "  The  State  is  lord  paramount 
as  to  no  man's  land."  12  Though  here,  as  in  England,  individ- 
ual ownership  in  lands  can  be  deduced  only  from  the  sover- 
eign —  the  Crown,  the  ante-revolutionary,  United  States,  or 
State  governments, —  yet,  when  so  acquired  it  is  held  in  pure 
and  free  allodium,  being  the  most  ample  and  perfect  interest 
that  can  be  obtained  in  land  and  denoting  a  full  and  absolute 
ownership;13  "  a  time  in  the  land  without  end"14  with  no 
duties  to  a  superior  lord,  or  services  or  fealty  incident  thereto. 
The  allegiance  which  the  citizen  owes  to  the  State  is  frequently 
spoken  of  as  fealty,15  but  this  is  an  obligation  arising  from 
political  status,  and  is  as  binding  on  him  who  owns  no  land  as 
on  him  who  counts  his  acres  by  the  thousands.  It  is  an  obli- 
gation, reciprocal  to  protection,  resulting  from  our  political  re- 
lations, and  in  no  way  affects  the  title  to  land  more  than  to 
chattels.16 

It  is,  however,  a  well-settled  principle,  growing  out  of  the 
nature  of  well-ordered  civil  society,  that  every  holder  of  prop- 
erty, however  absolute  and  unqualified  may  be  his  title,  holds 
it  under  the  implied  liability,  that  its  use  may  be  controlled 
and  regulated  by  the  State  in  such  a  manner  as  not  to  inter- 
fere with  the  equal  enjoyment  by  others  of  their  property,  nor 
be  injurious  to  the  rights  of  the  community,17  and  subject  to 
such  laws  as  the  legislature  may  enact  to  regulate  the  mode  of 
conveyance,  descent,  right  of  dower  or  other  rights  growing  out 
of  the  domestic  relations.18     All  property  is  held  subject  to 

12  Wallace  V.  Harmstad,  44  Penn.  16  Wallace  V.  Harmstad,  44  Perm. 
St.  492;  Van  Ransellser  V.  Smith,  St.  492;  Carlisle  V.  United  States, 
27  Barb.  157.  16  Wall.   146. 

13  1  Bon.  Law  Diet.  115;  1  Wash.  17  Commonwealth  v.  Alger,  7 
Real  Prop.  16.  Cush.  53;  Commonwealth  v.  Tewkes- 

14  Plowden,  555.  bury,  11  Met.  55. 

1 5  2  Bou.  Law  Diet.,  585  Art.,  18  Barker  v.  Dayton,  28  Wis.  367. 
"  Tenure." 


TITLE    TO    REAL    PROPERTY.  21 

those  general  regulations  established  by  law,  which  are  neces- 
sary to  the  common  good  and  general  welfare. 

§  19.  Estates  under  Allodial  Titles.  The  highest  estate 
held  by  an  allodial  title  is  denominated  a  fee  simple;  a  name 
borrowed  from  the  land  system  of  Great  Britain,  but  of  far 
greater  import  here  than  there.  It  signifies  an  absolute  estate 
of  inheritance,  clear  of  any  restrictions  to  particular  heirs,  and 
is  the  largest  estate  and  most  general  interest  that  can  be  en- 
joyed in  land,  being  the  entire  property  therein,  and  confers  an 
unlimited  power  of  alienation.19 

Though  usually  described  as  above,  the  estate  is  comprised 
in  the  word  "  fee,"  the  addition  of  the  word  "  simple  "  adding 
nothing  to  the  force  and  comprehensiveness  of  the  term.20  A 
sale  of  the  fee  does  not  include,  in  the  term  itself,  a  sale  free 
from  incumbrances,  but  denotes  only  the  nature  of  the  estate 
as  distinguished  from  a  lessor  or  restricted  one,  and  land  may 
be  sold  in  fee  subject  to  incumbrances,  the  expression  involv- 
ing no  inconsistency.21 

The  fine  distinctions  of  the  English  law  in  respect  to  estates 
have  little  application  in  the  United  States,  and  the  American 
doctrines  on  this  subject,  though  regulated  by  statute  in  the 
different  States  and  hence  differing  some  in  detail,  are  com- 
paratively simple.  In  addition  to  the  fee,  or  inheritance,  we 
have  estates  for  life,  for  years,  at  will  and  by  sufferance.  The 
estate  in  fee  tail  is  practically  abolished,  the  entail  being  lim- 
ited to  the  first  taker,  while  the  remainder  carries  the  fee.  Es- 
tates of  inheritance  and  for  life  are  generally  denominated 
freeholds;  estate  for  years,  chattels  real. 

With  respect  to  the  time  of  their  enjoyment,  they  are  fur- 
ther divided  into  estates  in  possession  and  in  expectancy ;  the 
latter  being  again  divided  into  estates  commencing  at  a  future 
day,  called  future  estates,  and  reversions.  A  future  estate  is 
one  limited  to  commence  in  possession  at  a  future  day,  either 
with  or  without  the  intervention  of  a  precedent  estate,  or  on 

19Haynes  V.  Bourn,  42  Vt.  686;  21  Caal  V.  Higgins,  23  N.  J.  Eq. 

Warvelle,  Real  Prop.  70.  308. 

20  Jecks  v.  Toussing,  45  Mo.  167. 


22  ABSTRACTS    OF    TITLE. 

the  determination,  by  lapse  of  time  or  otherwise,  of  a  precedent 
estate,  created  at  the  same  time.  When  preceded  by  a  par- 
ticular estate  they  are  generally  known  as  remainders. 

A  reversion  is  the  residue  of  an  estate  left  in  the  grantor  or 
his  heirs,  or  in  the  heirs  of  a  testator,  commencing  in  possession 
on  the  determination  of  a  particular  estate  granted  or  devised. 

Future  estates,  or  remainders,  are  also  classed  as  vested  or 
contingent.  They  are  vested  when  there  is  a  person  in  being 
who  would  have  an  immediate  right  to  the  possession  of  the 
lands,  upon  the  ceasing  of  the  intermediate  or  precedent  estate. 
They  are  contingent  while  the  person  to  whom  or  the  event  upon 
which  they  are  limited  to  take  effect,  remains  uncertain.  As  a 
general  rule  contingent  interests  are  assignable,  devisable  and 
descendible  the  same  as  vested  interests.22 

In  respect  to  the  number  and  connection  of  their  owners,  es- 
tates are  divided  into  estates  in  severalty,  in  joint  tenancy  and 
in  common.23  The  estate  in  joint  tenancy  has  now  become  very 
infrequent  and  is  generally  confined  to  interests  held  by  a  num- 
ber of  persons  as  trustees.  It  may  still  be  created,  however,  by 
the  employment  of  apt  words. 

As  a  rule,  every  conveyance  or  devise  of  lands  is  to  be  deemed 
a  fee  simple,  if  a  less  estate  is  not  limited  by  express  words,  or 
does  not  appear  otherwise  by  construction  or  operation  of  law,24 
and  future  estates  are  alienable  in  the  same  manner  as  estates 
in  possession,  by  deed  of  bargain  and  sale  without  covenants.25 

§  20.  Uses  and  Trusts.  The  ancient  doctrine  of  uses  and 
trusts  prevails  to  a  limited  extent  in  the  United  States,  though 
its  effect  is  by  no  means  uniform.     A  majority  of  the  States, 

22Kenyon  V.  See,  94  N.  Y.  563;  24  Leiter  v.  Sheppard,  85  111.  242. 

Winslow  V.  Goodwin,  7  Met.  (Mass.)  This   is   the   general    statutory   rule 

363.  but  in  a  few  States  the  old  cornmon- 

23  Estates,  in  the  United  States,  law  ideas  seem  to  have  been  re- 
are  essentially  creations  "of  the  stat-  tained  and  a  grant  or  devise  with- 
ute,  preserving  a  general  harmony  out  words  of  inheritance  creates 
in  all  the  States,  but  frequently  only  a  life  estate  in  the  grantee, 
widely  divergent  in  detail.  The  See,  Pate  v.  Bushong,  161  Ind.  533. 
statute  should  always  be  consulted  25  Goodel  V.  Hibbard,  32  Mich, 
in  construing  them.  47;  Kenyon  v.  See,  94  N.  Y.  563. 


TI'i  REAL    PBOPEBTY.  23 

following  the  example  of  New  York,  have  abolished  passive 
trusts  where  the  trustee  holds  only  the  naked  formal  title,  the 
whole  beneficial  interest  being  vested  in  the  cestui  que  trust, 
the  statute,  in  such  case,  confirming  to  the  beneficiary  a  legal 
estate  therein  of  the  same  quality  and  duration,  and  subject  to 
the  same  conditions,  as  his  beneficial  interest.2'1 

The  doctrine  of  resulting  trusts  has  been  much  modified,  and, 
as  a  rule,  no  implied  or  resulting  trust  is  effectual  to  defeat  or 
prejudice  the  title  of  a  purchaser  for  a  valuable  consideration, 
and  without  notice  of  such  trust. 

Express  trusts  are  usually  regulated  by  statute,  and  are 
created  for  the  sale  of  land  for  the  benefit  of  creditors,  lega- 
tees, etc.,  or  for  the  purpose  of  satisfying  any  charge  thereon; 
for  the  collection  and  application  of  the  rents  and  profits  of 
land ;  and  for  the  beneficial  interests  of  any  person  or  persons, 
when  such  trust  is  fully  expressed  and  clearly  defined  upon 
the  face  of  the  instrument.  Where  the  classes  of  express  trust3 
are  specifically  enumerated  by  statute,  the  creation,  for  any 
purpose,  of  any  trust  not  so  enumerated  vests  no  estate  in  the 
trustee,  though  if  valid  as  a  power  the  lands  to  which  the  trust 
relates  remain  in  or  descend  to  the  persons  otherwise  entitled, 
subject  to  the  execution  of  the  trust  as  a  power.  Xo  particu- 
lar form  of  words  is  necessary  to  create  a  trust,  and  effect  will 
always  be  given  to  the  intention  of  the  parties.27 

§  21.  Powers.  Closely  allied  to  trusts,  and  partaking 
somewhat  of  their  nature,  are  'powers,  the  creation,  construc- 
tion and  execution  of  which,  are,  in  a  majority  of  the  States, 
governed  by  express  statutory  provisions.  A  power,  as  defined, 
is  an  authority  to  do  some  act  in  relation  to  lands,  or  the  cre- 
ation of  estates  therein,  or  of  charges  thereon,  which  the  owner 
granting  or  reserving  such  power  might  himself  lawfully  per- 
form, and  no  person  is  capable,  in  law,  of  granting  a  power, 

26  The  above  statements  are  sub-  abolished  in  all  the  States:  4  Kent's 

stantially    true    of    all    the    States  Com.  308;  Verdin  V.  Slocum,  71  N. 

whose  procedure  is  the  same  as,  or  Y.   345. 

similar  to,  the  N.  Y.  Revision,  and  27  Fisher  V.  Fields,  10  Johns.  495; 

conveyances    to    use    are    generally  Saylor  v.  Plaine,  31  Md.  158. 


24  ABSTRACTS    OF    TITLE. 

who  is  not  at  the  same  time  capable  of  alienating  some  interests 
in  the  lands  to  which  the  power  relates.  Powers  are  general 
or  special,  and  beneficial  or  in  trust.28 

A  power  is  general  when  it  authorizes  the  alienation  in  fee, 
by  deed,  will,  or  charge  of  the  lands  embraced  in  the  power, 
to  any  alienee  whatever;  and  is  a  simple  form  of  familiar  oc- 
currence. It  is  special,  when  the  appointee  is  designated;  or 
where  it  authorizes  a  conveyance  of  a  particular  estate  or  inter- 
est less  than  a  fee.  A  general  or  special  power  is  beneficial, 
when  no  person  other  than  the  grantee,  has,  by  the  terms  of  its 
creation,  any  interest  in  its  execution.  A  general  power  is  in 
trust,  when  any  person,  other  than  the  grantee,  is  designated 
as  entitled  to  the  proceeds,  or  other  benefits  to  arise  from  the 
alienation  of  the  lands.  A  special  power  is  in  trust,  when  the 
disposition  which  it  authorizes  is  limited  to  be  made  to  any 
particular  persons  other  than  the  grantee;  or  when  any  class  of 
persons,  other  than  the  grantee,  is  entitled  to  any  benefit  from 
the  disposition  or  charge  authorized  by  the  power. 

A  power  may  be  granted  by  a  suitable  clause  contained  in 
the  instrument  of  conveyance  of  some  estate  in  the  lands  to 
which  same  relates,  or  by  devise  contained  in  a  last  will  and 
testament,  and  may  be  vested  in  any  person  capable  in  law  of 
holding  lands,  but  can  not  be  executed  by  a  person  not  capable 
of  alienating  lands  holden  by  such  person. 

A  power,  technically  speaking,  is  not  an  estate,  but  is  a 
mere  authority,  enabling  a  person,  through  the  medium  of  the 
statute,  to  dispose  of  an  interest  in  real  property,  vested  either 
in  himself  or  in  another  person,29  and  where  a  power  is  exe- 
cuted, the  person  taking  under  it  takes  under  him  who  created 
the  power,  and  not  under  him  who  executes  it.30 

A  power  to  sell  land  can  only  be  exercised  in  the  manner  and 

28  Kent   Com.    319;    2    Bou.    Law  29  Burleigh  v.  Cloughs,   52  N.  H. 

Diet.   356.     The   classification   above  268;  2  Prest.  Abstracts,  275. 

given  is  that  which  is  now  generally  30  Legget   V.   Doremus,   25   N.   J. 

observed  in  this  country,  though   it  Eq.    122. 
differs  somewhat  from  the  common 
law  classification. 


TITLE    TO    REAL   PROPERTY.  £5 

for  the  precise  purpose  declared  and  intended  by  the.  donor, 
and  when  the  purpose  becomes  wholly  unattainable,  the  power 
ceases.31  In  the  construction  of  powers,  the  intention  of  the 
parties,  if  compatible  with  law,  must  govern;  and  the  inten- 
tion is  to  be  determined  from  the  instrument  creating  the 
power.32 

§  22.  Homesteads.  The  statutes  of  all  the  States  have 
injected  into  the  law  of  real  property,  as  applied  in  this  coun- 
try, a  new  quality,  unknown  to  the  common  law,  denominated 
"  homesteads."  The  homestead  is  usually  a  constitutionally 
guaranteed  right  annexed  to  land,  whereby  the  same  is  ex- 
empted from  sale  under  execution  for  debt.  No  uniform  rule 
can  be  given  for  its  ascertainment,  it  being  variously  measured 
either  by  a  definite  money  value,  or  a- specific  appropriation  of 
land.  Nor  can  any  general  definition  of  its  character  be  given 
other  than  the  above,  as  the  authorities  are  by  no  means  har- 
monious in  prescribing  its  limits,  or  defining  its  effect. 

In  some  of  the  States  the  homestead  is  an  estate,33  limited 
only  as  to  its  value,  and  not  by  any  specific  degree  of  interest 
or  character  of  title  in  the  particular  property  to  which  it  at- 
taches, and  when  the  worth  of  the  property  does  not  exceed 
the  statutory  valuation,  the  estate  embraces  the  entire  title 
and  interest  of  the  householder  therein,  leaving  no  separate  in- 
terest in  him  to  which  lienS  can  attach  or  which  he  can  alien 
distinct  from  the  estate  of  homestead.34  Such  estate  has  also 
been  regarded  as  a  determinable  fee.35 

The  right  of  homestead,  in  a  majority  of  the  States,  is  held 
to  be  but  a  privilege  of  occupancy  against  creditors,36  the  con- 
tinuance of  which  depends  upon  the  continuance  of  prescribed 
conditions.37    When  once  acquired  it  is  a  vested  right,3S  though 

3iHetzel  v.   Barber,   69   N.   Y.   1.  Haslam  V.  Campbell,  60  Ga.  650. 

32Guion  V.  Pickett,  42  Miss.  77;  36  Brame     v.      Craig,      12     Bush 

Jackson  v.  Veeder,  11  Johns.  169.  (Ky.),  404;    Casebolt  v.  Donaldson, 

33Littlejohn  v.  Egerton,  77  N.  C.  67   Mo.    308;    Drake   v.   Kinsell,   38 

379;  Eldridge  V.  Pierce,  90  111.  474;  Mich.  232. 

Jenkins  V.  Volz,  54  Tex.  636.  37  Hill  v.  Franklin,  54  Miss.  632. 

34Merritt  v.  Merritt,  97  111.  243.  38  Barret  v.  Messner,  30  Tex.  604; 

35Poe  v.  Hardie,  65  N.  C.  447;  Barber  v.   Roarbeck,  36  Mich.   399. 


26  ABSTRACTS    OF    TITLE. 

it  seems  it  may  be  impaired  by  subsequent  legislation,39  and 
can  be  lost  only  by  abandonment.40  The  homestead  law  does 
not  vest  in  the  owner  any  new  rights  of  property  but  simply 
imposes  restrictions  on  the  creditor  in  seeking  satisfaction  for 
his  debt,41  and  the  protection  afforded  by  it  attaches  to  an 
equitable  title  with  the  same  force  as  to  the  legal  title.42  Where 
there  is  an  abandonment,  with  a  fixed  intention  not  to  return, 
the  homestead  may  be  subjected  to  the  demands  of  creditors, 
but  the  question  is  almost  exclusively  one  of  intent,  and  absence 
for  an  indefinite  period  is  not  sufficient  to  establish  the  fact  of 
an  abandonment,  unless  accompanied  with  proof  of  intent  not 
to  return.43 

In  every  State  special  restrictions  have  been  placed  on  the 
alienation  of  the  homestead,  it  being  in  contemplation  of  law 
the  last  retreat  and  shelter  of  the  family ;  and  though  its 
sale  is  permitted  the  voluntary  act  of  either  husband  or  wife, 
or  both,  would  be  ineffectual  for  that  purpose,  except  in  the 
manner  provided  by  statute,44  and,  as  a  rule,  the  alienation  of 
homestead  property  by  either  spouse  without  consent  of  the 
other  is  an  absolute  nullity,  the  purchaser  acquiring  no  title 
whatever.45  When  a  party  derives  title  to  property  in  good 
faith,  and  in  the  prescribed  methods,  through  one  who  has  a 
homestead  right  therein,  he  will,  it  seems,  succeed  to  his  grant- 
or's rights,  and  take  the  property  exempt  from  his  grantor's 
debts.40  In  many  examinations  the  questions  raised  with  re- 
spect to  homesteads  are  very  important. 

§  23.     Dower  and  Curtesy.     One  of  the  common  law  in- 

39  Harris  v.  Glenn,  56  Ga.  94.  625;  Abell  v.  Lathrop,  47  Vt.  375; 

40  Can-  V.  Rising,  62  111.  14;  Barnett  V.  Mendenhall,  42  Iowa, 
Crook  v.  Lunsford,  2  Sea  (Tenn.)  296;  Richards  v.  Green,  73  111.  54; 
237.  Bank  v.  Lyons,  52  Miss.   181;   Mil- 

41  Bank  v.  Green,  78  N.  C.  247.  ler  v.  Marx,  55  Ala.  322. 

42  Allen  V.  Hawley,  66  111.  164;  46  Shackelford  V.  Todhunter,  4 
Smith  v.  Chenault,  48  Tex.  455.  111.   App.   271;   Adrian  V.   Shaw,   82 

43  McMillan  v.  Warner,  38  Tex.  N.  C.  474;  Leupold  v.  Kruse,  95 
410;  Potts  v.  Davenport,  79  111.  455.  111.    440;    Carhart    V.    Harshaw,   45 

44Fiege  v.  Garvey,  47  Cal.  371;  Wis.  340;  Holland  v.  Kreider,  86 
Balkum  v.  Wood,   58  Ala.  642.  Mo.   59. 

45  Rogers    V.    Rcnshaw,    37    Tex. 


TITLE   TO    REAL   PROPERTY.  27 

cidents  of  real  property  is  dower,  being  that  provision  which 
the  law  makes  l'<>v  a  widow  out  of  the  lands  or  tenements  of  her 
deceased  husband,,  for  her  support  and  the  nurture  of  her 
children.47  The  common  law  right  of  dower  no  longer  exists, 
however,  in  a  majority  of  the  States,  the  rights  of  the  surviv- 
ing wife  in  the  real  estate  of  her  deceased  husband  being  those 
created  by  statute  alone,  and  questions  arising  upon  them  must 
be  determined  solely  by  reference  to  the  statute.48  Xo  uni- 
form measure,  either  as  to  quantity  or  quality,  has  been 
adopted,  but  in  the  main  the  estate  conferred  conforms  to  that 
of  the  common  law  and  consists  of  the  use  by  the  widow,  dur- 
ing her  life,  of  one  third  part  of  all  the  lands  whereof  her  hus- 
band was  seized  of  an  estate  of  inheritance  at  any  time  during 
the  marriage. 

During  the  lifetime  of  the  husband,  the  wife  has  only  an 
inchoate  right,  which  is  not  an  estate  in  the  land  but  a  mere 
contingent  interest  that  attaches  to  the  land  as  soon  as  there 
is  the  concurrence  of  marriage  and  seizin.  This  interest  be- 
comes fixed  and  certain  upon  the  death  of  the  husband,  and 
after  the  assignment  of  dower  develops  into  a  freehold  estate 
in  land.49  During  the  marriage  no  act  of  the  husband  alone 
could,  at  common  law,  bar  or  extinguish  this  interest,  which  in 
England  was  accomplished  only  by  levying  a  fine  or  suffering 
a  common  recovery.50  In  the  United  States  a  woman  may  be 
barred  of  her  dower  by  jointure  settled  on  her  before  mar- 
riage, or  by  joining  with  her  husband  in  a  deed  of  conveyance, 
properly  acknowledged.51 

Before  dower  has  been  assigned,  it  can  be  released  only  to 
the  owner  of  the  fee,  or  to  some  one  in  privity  with  the  title 
by  his  covenants  of  warranty.  But  where  the  former  owner  of 
the  fee  in  land  in  which  dower  rights  still  exist,  has  conveyed 
the  same  with  warranty,  he  may  purchase  the  right  for  the 

47  2    Black.    Com.     130;    4    Kent  50  2   Black.    Com.    137;    4    Kent's 

Com.   35.  Com.  51. 

48Gaylord  v.  Dodge,   31   Ind.  41.  514   Kent   Com.    60;    Elmdorf   v. 

49  Elmdorf  v.  Lockwood,  57  N.  Y.  Lockwood,    57   N.   Y.    322. 
322. 


28  ABSTRACTS    OF    TITLE. 

benefit  of  his  grantee,  however  remote,  and  thus  prevent  a 
breach  of  the  covenants.52 

The  release  of  dower  which  a  married  woman  makes  by 
joining  with  her  husband  in  a  conveyance  of  his  land,  operates 
against  her  only  by  estoppel,  and  can  be  taken  advantage  of 
only  by  those  who  claim  under  that  conveyance,53  and  if  the 
conveyance  is  void,  or  ceases  to  operate,  she  is  again  clothed 
with  the  right  which  she  had  released. 

During  coverture,  the  wife's  inchoate  right  of  dower  is  in- 
capable of  being  transferred  or  released,  except  to  one  Who 
has  already  had,  or  by  the  same  instrument  acquires  an  inde- 
pendent interest  in  the  estate.54  The  right  is  not  such  an  es- 
tate as  can  be  leased  or  mortgaged,55  neither  can  a  married 
woman  bind  herself  personally  by  a  covenant  or  contract  af- 
fecting her  right  of  dower  during  the  marriage.  Hence,  a  deed 
executed  by  husband  and  wife  with  a  covenant  of  warranty, 
does  not  estop  the  wife  from  setting  up  a  subsequently  acquired 
'title  to  the  same  lands.56  The  inchoate  right  of  dower  not  be- 
ing the  subject  of  conveyance  in  any  of  the  usual  forms  by 
which  real  property  is  transferred,  and  the  doctrine  of  estoppel 
by  which  subsequently  acquired  titles  are  made  to  inure  to  the 
benefit  of  former  grantees  being  inapplicable,  it  follows  that  a 
grantee  or  mortgagee  claiming  under  an  instrument  executed  by 
a  woman  during  coverture  acquires  no  title  or  interest  in  the 
dower  of  the  grantor  or  mortgagor  when  the  estate  becomes  ab- 
solute, whether  dower  has  been  assigned  or  not.57  But  in  all 
cases  where  the  wife  unites  with  her  husband  in  a  conveyance, 
properly  executed  by  her,  which  is  effectual  and '  operative 
against  the  husband  and  which  is  not  superseded  or  set  aside 

52  La  Framboise  V.  Crow,  56  111.  56  Jackson,  v.  Vanderheyden,  17 
197.  Johns.   107. 

53  Malloney  v.  Horan,  49  N.  Y.  57  Marvin  v.  Smith,  46  N.  Y.  571 ; 
111;  Lockett  V.  James,  8  Bush  Carson  v.  Murray,  3  Paige,  483.  It 
(Ky. ),    28;    French    v.    Crosby,    61  will   be    understood   that  the   state- 

Me.  502.  ment   of  the   text   has   no   reference 

54  Robinson  V.  Bates,  3  Met.  40 ;  to  lands  held  by  a  married  woman 
Tompkins  v.  Fonda,  4  Paige,  448.  in  her  own  right. 

55  Croade  V.    Ingraham,   13   Pick. 
33. 


TITLE   TO    REAL   PROPERTY.  29 

as  against  him  or  bis  grantee,  her  right  of  dower  is  forever 
barred  and  extinguished,  for  all  purposes  and  as  to  all  persons.58 

Tenancy  by  the  curtesy  has  been  generally  abolished  and  the 
husband  takes  a  statutory  allowance  from  the  deceased  wife's 
estate,  the  quantity  and  quality  varying  in  the  different  States. 
Tenancies  in  dower  or  curtesy  stand,  like  all  other  estates  of 
freehold  for  life,  necessarily  subjected  to  the  charges,  duties 
and  services  to  which  the  estate  may  be  liable,  in  proportion 
to  the  interest  therein.59  In  the  examination  of  titles  dower  is 
an  important  incident  and  always  raises  an  inquiry  in  every 
conveyance  not  of  an  official  nature. 

§  24.  Terms  of  Years.  Xext  to  a  fee  simple,  the  most 
common  estate  known  to  our  law  is  an  estate  for  years,  being 
a  right  to,  or  contract  for,  the  possession  and  profits  of  lands 
in  consideration  of  a  recompense,  called  rent.60  Estates  for 
years,  for  life,  and  at  will  or  by  sufferance,  are  frequently 
called  "  tenancies,"  because  the  holders  thereof  are  regarded 
as  mere  occupants,  while  the  ultimate  title  remains  in  the  pro- 
prietor of  the  fee.  This,  however,  is  not  strictly  exact,  as 
every  owner  of  an  estate  is,  in  law,  a  tenant,  that  is,  a  holder, 
without  reference  to  the  quantity  or  quality  of  the  interest.  But 
in  common  parlance  the  owner  of  leasehold  interests  are  gen- 
erally called  tenants  as  distinguished  from  owners  of  indeter- 
minate interests  or  estates. 

In  estates  for  years,  the  time  as  well  as  the  estate  itself  are 
both  called  a  term.  Such  an  estate  is  not  an  interest  in  the 
land,  but  only  a  right  to  the  use  and  possession  thereof  for  a 
definite  period,  hence  a  tenant  is  not  said  to  be  seized  of  the 
land,  but  only  possessed  of  the  term.  The  estate  is  of  frequent 
occurrence  in  the  examination  of  titles,  and  often  rivals  in  dig- 
nity and  importance  the  fee  itself.  It  is  created  by  an  instru- 
ment called  a  lease,  and  is  terminated  by  its  own  limitation ; 
by  forfeiture,  in  consequence  of  a  breach  of  some  express 
stipulation  or  covenant ;  or  by  operation  of  law  termed  a 
merger,  where  the  tenant  by  any  means  becomes  seized  of  the  fee 

58  Elmdorf  V.  Lockvvood,  57  N.  Y.  59  Peyton  v.  Jeffries,  50   111.  143. 

322.  60  4  Cruise,  Dig.   51. 


30  ABSTRACTS    OF    TITLE. 

of  the  reversion.  The  tenancy  may  also  be  terminated  by  a  sur- 
render of  the  lease  to  the  landlord,  or  where  the  subject-matter 
of  the  lease  wholly  perishes.  The  tenant  is  never  permitted, 
for  reasons  of  sound  public  policy,  to  controvert  his  landlord's 
title,  or  to  set  up  against  him  a  title  acquired  by  himself  dur- 
ing his  tenancy  which  is  hostile  in  its  character  to  that  which 
he  acknowledged  in  accepting  the  demise. 

§  25.  Easements  and  Servitudes.  An  easement  has 
been  denned,  as  "  a  right  in  the  owner  of  one  parcel  of  land, 
by  reason  of  such  ownership,  to  use  the  land  of  another  for  a 
special  purpose  not  inconsistent  with  a  general  property  in 
the  owner."  61  This,  perhaps,  is  as  good  a  definition  as  can  be 
framed.  Easements  are  as  various  as  the  exigencies  of  domestic 
convenience  or  the  purposes  to  which  buildings  and  land  may 
be  applied,  and  are  created  by  grant,  confirmation,  reservation 
or  prescriptive  user.  The  owner  in  fee  of  land  may  impose 
upon  it  any  burden,  however  injurious  or  destructive,  not  in- 
consistent with  his  general  right  of  ownership,  if  such  burden 
be  not  in  violation  of  public  policy  and  does  not  injuriously 
affect  the  rights  or  property  of  others.62 

An  easement  may  be  created,  or  reserved  by  an  implied 
grant,  when  its  existence  is  necessary  to  the  enjoyment  of  that 
which  is  expressly  granted  or  reserved,  upon  the  principle 
that,  where  one  grants  anything  to  another,  he  thereby  grants 
him  the  means  of  enjoying  it,  whether  expressed  or  not,63 
but  easements  exist  as  appurtenant  to  a  grant  of  lands  only 
by  reason  of  a  necessity  to  the  full  enjoyment  of  the  property 
granted.64  Xothing  passes  by  implication,  or  as  incident  or 
appurtenant,  except  such  rights  or  privileges,  as  are  directly 
necessary  to  the  proper  enjoyment  of  the  granted  estate,  and 
the  necessity  measures  the  extent  and  duration  of  the  right. 
When  the  necessity  ceases,  the  rights  resulting  from  it  cease.65 

oiWash.  Real  Prop.  25;  Meek  V.  Dillman   r.   Hoffman,   38   Wis.    559. 

Breckenridge,   29  Ohio  St.   642.  64  Woodworth     v.     Raymond,     51 

02  Van  Rensselser  v.  R.  R.  Co.,  1  Conn.   70. 

Hun   (X.  Y.    ).  507.  65  Hancock  r.  Wentworth,  5  Met. 

63  Lanier  v.  Booth,  50  Miss.  410;  446;    Carey  v.   Rae,   12   Rep.  523. 
Pingree  V.  McDuffe,  56  N.   H.  306; 


TITLE    TO    EEAL    PROPERTY.  31 

It  must  be  an  actual  and  a  direct  necessity.  A  mere  conven- 
ience is  not  sufficient  to  create  or  convey  a  right  or  easement, 
or  impose  burdens  on  lands,  other  than  those  granted,  as  in- 
cident to  the  grant.66 

Easements  of  necessity,  when  the  title  to  the  dominant  es- 
tate and  to  the  servient  estate  unite  in  a  common  owner,  are 
merged  and  lost.  On  separate  conveyances  of  the  estates  by 
the  common  owner,  such  easements  are  not  revived,  nor  treated 
as  having  existed  during  the  time  the  two  estates  were  in 
the  common  owner,  but  are  re-created  by  the  conveyance  of  the 
estates  separately,  and  arise  from  the  application  of  the  rule 
above  stated.67 

In  respect  to  the  acquisition  of  easements  by  user,  no  univer- 
sal rule  of  law  as  to  the  effect  of  evidence  of  particular  facts 
can  be  laid  down,  and  when  established  by  prescription,  or 
inferred  from  user,  such  easements  are  limited  to  the  actual 
user.  A  right  claimed  by  user  is  only  co-extensive  with  the 
user.6S 

Special  easements  are  created  by  grant  or  confirmation,  or 
may  be  reserved  by  special  reservation  in  a  conveyance  of 
lands,  and  easements  created  in  this  manner  do  not  cease,  even 
though  the  necessity  for  them  may  have  ceased.69 

A  license  is  an  authority  to  enter  upon  the  lands  of  another 
and  do  a  particular  act  or  series  of  acts,  without  possessing 
any  interest  in  the  land.  A  claim  for  an  easement  must  be 
founded  upon  a  grant,  by  deed  or  writing,  or  upon  prescription 
which  presupposes  a  grant,  for  it  is  a  permanent  interest 
in  another's  land;  but  a  license,  conveying  no  estate  or  in- 
terest, may  be  by  parol.  It  is  founded  in  personal  confidence, 
is  not  assignable,  and  if  executory  is  revocable  at  the  pleasure 
of   the    grantor.     The    distinction,    however,    is    quite    subtle, 

66  Ogden  V.  Jennings,  62  N.  Y.  68  Brooks  v.  Curtiss,  4  Lans. 
526;    Holmes    v.    Seely,    19    Wend.        (N.  Y.)    283. 

507;  Warren  v.  Blake,  54  Me.  276;  69  Atlanta    Mills    v.    Mason,    120 

Carey  v.  Rae,  12  Reporter,  523.  Mass.  244. 

67  Miller  v.  Lapham,  44  Vt.  416. 


32  ABSTRACTS    OF    TITLE. 

and  it  becomes  difficult,  in  many  cases,  to  discern  a  substantial 
difference  between  them.70 

In  the  examination  of  titles  easements  of  record  are  readily 
ascertained,  but,  as  an  easement  may  exist  without  an  express 
grant,  the  attention  of  clients  should  always  be  directed  to  the 
incidents,  situation  and  condition  of  the  land,  and  particularly 
to  the  rights  of  persons  in  possession  or  exercising  acts  of 
ownership. 

§  26.  Color  of  Title.  A  title  may  be  actual  or  merely 
colorable.  A  person  is  properly  said  to  have  color  of  title 
to  lands  when  he  has  an  apparent  though  not  a  real  title  to 
the  same,  founded  upon  a  deed  which  purports  to  convey 
them  to  him,71  and  a  claim  to  real  property  under  such  a 
conveyance,  however  inadequate  it  may  be  to  carry  the  true 
title,  or  however  incompetent  the  grantor  may  be  to  convey 
such  title,  is  strictly  a  claim  under  color  of  title.72  Possession 
under  color  of  title  for  the  period  of  statutory  limitation,  con- 
fers upon  the  holder  a  perfect  title  in  law,  and  where  one 
takes  possession  under  a  deed  giving  color  of  title,  his  possession 
may  be  transferred  to  subsequent  parties,  and  the  possession 
of  the  different  holders  may  be  united  so  as  to  make  up  the 
statutory  period,  the  operation  being  technically  called  tack- 
ing.73 Titles  acquired  in  this  manner  must,  however,  show 
connected  possession,  and  a  privity  of  grant  or  descent.  Those 
who  hold  lands  independently  of  previous  holders,  their  several 
possessions  having  no  connection,  can  not  so  tack  their  pos- 
session as  to  avail  themselves  of  that  which  has  gone  before.74 

§  27.  Evidences  of  Title.  There  is,  strictly  speaking, 
but  one  species  of  title  to  lands,  and  that  the  legal  title.  In- 
dividuals may  possess  equities  of  recognized  potency,  but  such 
equities,  after  all,  do  not  constitute  title,  although  they  may 
carry  with  them  the  right  to  the  title  and  the  entire  beneficial 

to  Mumford  V.  Whitney,  15  Wend.  72Edgerton  v.  Bird,  6  Wis.  527; 

380;  Thompson  v.  Gregory,  4  Johns.  Hinkley  v.  Greene,   52  111.  223. 

81;   3  Kent  Com.  452.  73  Cooper  v.  Ord,  60  Mo.  420. 

71  Seigneuret  v.  Fahey,  27  Minn.  74  Crispen    V.    Hannavan,    50   Mo. 

60;  Rigor  v.  Frye,  62  111.  507.  536. 


TITLE    TO   PEAL   PEOPEETY.  33 

interest.  Courts  of  equity  may  grant  relief  to  the  holders  of 
such  equities,  but  at  law  the  legal  title  must  always  prevail.75 
A  sale  of  real  property,  whether  judicial  or  voluntary,  does 
not  pass  title,  but  only  gives  a  right  to  a  conveyance  of  the  land 
according  to  the  terms  of  sale,76  and  the  purchaser  can  not 
be  treated  as  the  legal  owner  of  the  property,  until  it  has  been 
duly  transferred  to  him  by  a  deed  executed  by  proper  au- 
thority.77 The  evidences  of  legal  title  consist  of  voluntary 
grants  by  the  sovereign,  or  individual ;  conveyances  resulting 
from  judicial  proceedings,  or  made  in  the  exercise  of  the  tax- 
ing power  of  the  State;  deeds  executed  by  trustees  or  other 
ministerial  officers;  regular  descents  in  the  manner  provided 
by  law;  or  continuous  possession  which  presupposes  some  one 
of  the  other  methods. 

§  28.  Alienation  and  Descent.  The  Constitution  of  the 
United  States  declares  that  Congress  shall  have  power  to  dis- 
pose of  and  make  all  needful  rules  and  regulations  respecting 
the  territory  and  other  property  belonging  to  the  government, 
and  under  this  provision  the  sale  of  the  public  lands  has  been 
placed  by  statute  under  the  control  of  the  Secretary  of  the 
Interior.  To  aid  him  in  the  performance  of  this  duty,  a 
bureau  has  been  created,  at  the  head  of  which  is  the  com- 
missioner of  the  General  Land  Office,  with  many  subordinates. 
To  them,  as  a  special  tribunal,  Congress  has  confided  the  execu- 
tion of  the  laws  which  regulate  the  disposal  and  general  care  of 
these  lands,  and  has  also  enacted  a  system  of  laws  by  which 
rights  to  these  lands  may  be  acquired,  and  the  title  of  the 
government  conveyed  to  the  citizen.78  Congress  has  the  sole 
power  to  declare  the  effect  and  dignity  of  titles  emanating 
from  the  United  States,79  and  the  States  can  not  interfere  with 
the  primary  disposition  of  the  soil  by  the  general  government. 
Whether  a  title  to  a  tract  of  public  land  has  passed  from  the 

75Bagnel    v.    Broderick,    13    Pet.  77  Page   Vi    Rogers,    31    Cal.    294; 

436;   Fenn.  v.  Holme,  21  How.  481.  Smith  v.   Colvin,    17   Bark.    157. 

70  Semple  v.  Bank,  5  Sawyer   (C.  78  United    States   v.    Schurz,    102 

CL)    394.  U.  S.  378. 
3 


34:  ABSTKACTS    OF    TITLE. 

United   States,   is   a   question  depending  solely  upon   statutes 
enacted  by  Congress. 

After  title  has  passed  from  the  government  the  land  becomes 
subject  to  the  laws  of  the  State  in  which  it  lies,80  and  to  the 
laws  of  such  State  recourse  must  be  had  for  the  rules  which 
govern  its  descent,  alienation  and  transfer,  as  well  as  for  the 
effect  and  construction  of  its  conveyances.81  All  the  means  by 
which  the  title  to  real  property  is  transferred,  whether  by 
deed,  by  will,  or  by  judicial  proceeding,  are  subject  to,  and 
may  be  governed  by,  the  legislative  will  of  the  State  in  which 
it  lies,82  except  where  such  law  impairs  the  obligation  of  a  con- 
tract, and  all  the  laws  of  a  State  existing  at  the  time  a 
conveyance  or  contract  is  made,  which  affect  the  rights  o'f  the 
parties  to  the  same,  enter  into  and  become  a  part  of  it.83  The 
State  possesses  the  sole  power  to  regulate  the  modes  of  transfer 
and  the  solemnities  which  accompany  them,  and  title  can  be 
acquired,  transferred  or  lost  only  in  accordance  with  such 
regulations,84  though  it  would  seem  that  in  the  interpretation 
of  deeds  personal  covenants  can  not  be  implied  if  not  author- 
ized by  the  laws  of  the  State  where  the  deed  was  made,85 
while  in  some  States  the  rule  as  above  stated  has  been  so 
modified  by  statute  that  lands  may  be  as  effectively  conveyed 
by  conforming  to  the  law  of  the  place  where  the  deed  is 
executed  and  acknowledged.86  In  the  latter  case  proof  of  such 
conformity  should  accompany  the  deed  or  other  instrument  of 
conveyance. 

79  Bagnell  V.  Broderick,  13  Pet.  S2  0sborn  V.  Adams,  18  Pick. 
(U.   S.)    436.  (Mass.)    245. 

80  Wilcox  V.  Jackson,  13  Pet.  (U.  S3  Brine  V.  Ins.  Co.,  96  U.  S.  627; 
S.)   498.  Bronson  v.  Kinzie,   1  How.   311. 

si  McGoon  V.  Scales,  9  Wall.    (U.  S4  Story's   Conf.   Laws,   708. 

S.)   23;  Clark  V.  Graham,  6  Wheat.  85  Bethel   v.   Bethel,   54   Ind.  428. 

577 ;    McCormick    V.    Sullivantj    10  86  Hoadley    V.    Stephens,    4    Neb. 

Wheat.    (U.   S.)    192.  431. 


CHAPTER  III. 


TITLE  BY  DESCENT. 


§  29.  Nature  of  the  title. 

30.  Rules  of  descent. 

31.  Consanguinity. 

32.  Affinity. 


§  33.  Adoption. 

34.  Proof  of  heirship. 

35.  Proof  of  death. 

36.  Conveyances  by  heirs. 


§  29.  Nature  of  the  Title.  Descent,  or  hereditary  suc- 
cession, is  the  title  whereby  one  person,  upon  the  death  of  an- 
other, succeeds  to  or  acquires  the  estate  of  the  latter  as  heir 
at  law,  the  estate  so  derived  being  called  an  inheritance.1 
Though  of  universal  observance,  inheritance  is  not  a  natural 
right  but  is  purely  statutory,  and  therefore  arbitrary,  absolute 
and  unconditional.2  An  heir  at  law  is  the  only  person  who, 
by  the  common  law,  becomes  the  owner  of  land  without  his 
own  agency  or  assent,  the  law  casting  the  title  upon  him  with- 
out regard  to  his  wishes  or  election,  and  when  the  right  of  in- 
heritance is  fully  established  by  strict  compliance  with  the  law 
relating  to  descents,  proof  of  heirship,  etc.,  the  title  thus  con- 
ferred is  of  the  highest  dignity  and  effectual  for  all  purposes. 
In  the  absence  of  probate  proceedings  or  a  judicial  determina- 
tion of  the  rights  of  the  heirs,  titles  depending  on  descent  are 
to  be  viewed  with  jealousy  and  accepted  with  caution,  and 
particularly  will  this  be  the  case  where  title  is  asserted  through 
descent,  by  an  heir  in  a  remote  degree  from  the  intestate  or 
common  ancestor. 

The  title  to  the  land  of  an  intestate  vests  immediately  in 
the  heir  who  holds  same  in  his  own  right,  but  charged  with 
the  payment  of  the  ancestor's  debts,3  and  until  finally  settled 

1  2  Black.  Com.  201 ;  4  Kent  Com.    *374. 

2  Tyler     v.     Reynolds,     53     Iowa,    146. 

3  Walbridge  v.  Day,  31   111.  379;   Chubb  v.  Johnson,  11  Tex.  469. 

35 


36  ABSTRACTS    OF    TITLE. 

in  the  probate  court  the  estate  is  liable  to  be  defeated  by  a 
sale  made  in  due  course  of  administration,  becoming  absolute 
only  after  the  debts  are  extinguished.4 

The  heirs  are  said  to  take  per  capita  or  per  stirpes,,  that  is 
direct,  or  in  their  own  right,  they  standing  in  equal  degree, 
and  receiving  equal  shares ;  or,  by  right  of  representation, 
where  the  descendants  of  a  deceased  heir  take  the  same  share 
or  right  in  the  estate  of  another  person  that  their  ancestor 
would  have  taken  if  living.  Posthumous  children  are  con- 
sidered as  living  at  the  death  of  their  parents  and  participate 
as  such.5 

Inheritance  only  accrues  to  the  issue  of  lawful  wedlock,  but 
all  the  presumptions  of  law  are  in  favor  of  legitimate  birth,6 
and  an  illegitimate  child  is  generally  considered  as  the  heir 
of  its  mother.7  The  descent  of  real  property  and  the  order 
of  succession  is  governed  by  special  statutes  known  as  "  rules 
of  descent,"  and  which  vary  in  every  State. 

§  30.  Rules  of  Descent.  "  The  English  law  of  descent " 
says  Chancellor  Kent,8  "  is  governed  by  a  number  of  rules, 
or  canons  of  inheritance,  which  have  been  established  for  ages, 
and  have  regulated  the  transmission  of  the  estate  from  the 
ancestor  to  the  heir,  in  so  clear  and  decided  a  manner,  as  to 
preclude  all  uncertainty  as  to  the  course  which  the  descent 
is  to  take.  But  in  the  United  States,  the  English  common 
law  of  descents,  in  its  most  essential  features  has  been  uni- 
versally rejected,  and  each  State  has  established  a  law  of  de- 
scent for  itself."  The  laws  of  the  several  States,  while- pre- 
serving a  general  agreement  in  their  essential  outlines,  yet 
differ  materially  in  detail,  and  it  is  doubtful  if  any  two  of 
them  are  exactly  alike,  a  circumstance  that  has  induced  a 
distinguished  writer  on  this  subject  to  say,  that  "  this  nation 
may  be  said  to  have  no  general  law  of  descents,  which  probably 

4  Vansycle  V.   Richardson,   13   111.  6  Fox  v.  Burke,  31  Minn.  319. 
171;    Wilson    v.    Wilson,    13    Barb.  7  Miller   v.    Williams,    66   111.   92. 
252.  This  matter  is  statutory. 

5  4    Kent   Com.    412;    Morrow   v.  8  4  Kent  Com.  *374. 
Scott,   7  Ga.   535. 


TITLE    BY    i)i:S(.'KNT.  37 

has  not  fallen  to  the  lot  of  any  other  civilized  country."  * 
No  attempt  will  be  here  made  to  summarize  or  explain  the 
regulations  of  descent  in  the  various  States,  hut  in  the  course 
of  his  investigations,  the  examiner  will  frequently  have  to 
refer  to  them  for  assistance  in  unraveling  knotty  points  or 
snarls  in  the  tangled  skein  of  title. 

The  transmission  of  property  by  hereditary  descent,  from 
the  parent  to  his  children,  is  the  dictate  of  the  natural  affec- 
tions, and  forms  the  first  rule  of  inheritance  in  every  State, 
varied  in  some  cases,  however,  by  the  equal  participation  of 
the  widow.  From  this  point  on  there  is  no  uniformity,  but,  as 
a  rule,  the  lineal  kindred  take  in  preference  to  the  collateral. 
If  the  descendants  all  stand  in  the  same  degree  of  consan- 
guinity they  take  equally,  otherwise  by  right  of  representation, 
and  if  there  be  no  heirs,  the  property  escheats  to  the  State. 
The  degrees  of  kindred  are  usually  computed  in  the  United 
States,  according  to  the  rules  of  the  civil  law;  and  the  kindred 
of  the  half-blood  inherit  equally  with  those  of  the  whole  blood, 
in  the  same  degree,  unless  the  inheritance  be  ancestral,  in 
which  case,  as  a  general  proposition,  those  who  are  not  of  the 
blood  of  such  ancestor  are  excluded.  The  last  mentioned  rule 
has  been  enacted  substantially  in  most  of  the  States,  but  is  held 
to  refer  to  the  immediate  and  not  to  a  remote  ancestor.10 

§  31.  Consanguinity.  The  relation  subsisting  among  all 
the  different  persons  descending  from  the  same  stock  or  com- 
mon ancestor,  is  called  consanguinity,  and  is  the  medium 
through  which,  in  the  descent  of  real  property,  the  several  de- 
grees of  kindred  are  computed  and  deduced.  Consanguinity 
is  lineal  or  collateral;  the  former  being  the  relation  which  ex- 
ists among  persons  where  one  is  descended  from  the  other, 
as  between  father  and  son,  in  the  direct  line  of  descent ;  the 
latter  is  the  relation  subsisting  between  persons  descended  from 
the  common  ancestor,  but  not  from  each  other,  as  between 
brother  and  sister.     There  are  two  methods  of  computing  the 

9  Reeve  on  Descent,  pref.  Ohio,  36;   Larder  v.  Collins,  2  Pet. 

10  Buckingham  v.  Jacques,  37  58;  Cramer's  Appeal,  43  Wis.  167; 
Conn.    402;    Curren    v.    Taylor,    19       Ryan  v.  Andrews,  21  Mich.  229. 


38  ABSTRACTS    OP    TITLE. 

degrees  of  consanguinity,  known  respectively  as  the  civil,  and 
common  law  methods,  the  latter  being  also  the  same  as  the 
canon  law. 

The  rule  of  the  civil  law  is  generally  used  in  this  country, 
and  is  preferable  for  that  it  points  out  the  actual  degree  of 
kindred  in  all  cases.  This  mode  of  computation  begins  with 
the  intestate,  and  ascends  from  him  to  the  common  ancestor, 
and  descends  from  such  ancestor  to  the  next  heir,  reckoning 
a  degree  for  each  person,  both  ascending  and  descending,  and 
the  degrees  they  stand  from  each  other  is  the  degree  in  which 
they  stand  related.  According  to  this  rule  of  computation  it 
will  be  seen,  the  father  of  the  intestate  stands  in  the  first  de- 
gree, his  brother  in  the  second,  his  nephew  in  the  third,  etc. 

By  the  common  law  method  of  computation,  different  rela- 
tions may  stand  in  the  same  degree,  and  the  degrees  are  counted 
the  same  whether  lineal  or  collateral.  The  mode  of  the  com- 
mon and  canon  law  is  to  discover  the  common  ancestor,  and 
beginning  with  him  to  reckon  downwards,  and  the  degree  the 
two  persons,  or  the  more  remote  of  them,  is  distant  from  the 
ancestor,  is  the  degree  of  kindred  subsisting  between  them.11 
By  this  means  the  father  and  brother  of  the  intestate,  or 
person  proposed,  stand  in  the  same  degree.  By  the  civil 
law  the  father  stands  in  the  first  degree,  the  brother  in  the 
second.  So  by  the  common  law  the  first  cousin  stands  in  the 
second  degree ;  by  the  civil  law  he  would  stand  in  the  fourth. 

The  line  of  ancestry  is  classed  as  ascending  or  descending, 
taking  the  person  proposed  as  the  unit,  and  is  further  classified 
as  paternal  or  'maternal,  according  as  the  examination  may 
lead  through  the  father  or  the  mother.  In  England,  a  fair 
ability  to  trace  genealogy  is  an  indispensable  requisite  of  the 
examiner,  as,  owing  to  the  non-probate  of  real  estate  wills 
until  very  recent  years,  a  pedigree  always  accompanys  an  ab- 
stract showing  a  descent.  The  matter  is  of  much  less  impor- 
tance in  the  United  States,  as  in  all  properly  conducted  pro- 
bate proceedings  a  table  of  heirship  is  always  found.  As  an 
illustration  of  the  subject  under  discussion,  a  diagram  of  the 

u  1  Bou.  Law  Diet.  327;  2  Black.      Corn.  202. 


TITLE    BY    DESCENT.  39 

degrees  of  consanguinity,  according  to  the  civil  law,  is  given 
on  the  succeeding  page. 

§  32.  Affinity.  The  relationship  or  connection  arising  in 
consequence  of  marriage,  which  exists  between  each  of  the 
married  persons  and  the  kindred  of  the  other,  is  termed  affinity, 
and  is  distinguished  from  consanguinity  which  is  used  to  de- 
note the  ties  of  blood.  At  common  law  the  relationship  of 
affinity  is  not  sufficient  to  obtain  legal  succession  or  inheritance, 
but  by  statute,  in  some  States,  the  surviving  husband  or  wife 
has  been  endowed  with  inheritable  qualities  and  either  may 
take  as  an  heir  of  the  other  according  to  the  prescribed  rules 
of  descent ;  and  in  the  sense  that  an  heir  at  law  is  simply  one 
who  succeeds  to  the  estate  of  a  deceased  person,  the  surviving 
wife  may  be  said  to  be  an  heir  of  her  deceased  husband.12 

§.  33.  Adoption.  Adoption  is  a  juridical  act  creating  be- 
tween two  persons  certain  relations,  purely  civil,  of  paternity 
and  filiation.  The  legal  adoption  by  one  person  of  the  off- 
spring of  another,  giving  him  the  status  of  a  child  and  heir 
of  the  parent  by  adoption,  was  unknown  to  the  common  law, 
although  long  recognized  by  the  civil,  and  is  of  comparatively 
recent  date  in  the  United  States.  The  act  of  adoption  is  the 
creation  of  an  artificial  relation,  made  in  conformity  with 
and  regulated  by  positive  statute,  in  the  light  of  which  the 
new  rights  and  obligations  thus  derived  are  to  be  solely  con- 
strued.13 

There  is  a  lack  of  uniformity  in  the  statutes  enacted  by  the 
States,  yet,  in  the  main  they  agree  in  conferring  on  the  person 
so  adopted  the  rights  of  inheritance  and  succession,  and  other 
legal  consequences  and  incidents  of  the  natural  relation  of 
parent  and  child,  the  same  as  if  such  child  had  been  born  in 
lawful  wedlock  of  such  parent  by  adoption,  but,  as  a  rule,  re- 
strict such  child  from  taking  property  expressly  limited  to  the 
body  or  bodies  of  the  parents  by  adoption,  and  in  some  in- 
stances from  taking  from  the  lineal  or  collateral  kindred  of  the 

i2McKinney  V.    Stewart,   5   Kan.  l3Keegan    v.    Geraghty,    101    111. 

384;    Steel    V.    Kurtz,    28    Ohio    St.       26;   Long  v.  Hewitt,  44  Iowa,  363; 
192.  Tyler  v.  Reynolds,  53   Iowa,   146. 


40 


ABSTRACTS    OF    TITLE. 


DEGREES    OF    CONSANGUINITY    ACCORDING    TO    THE    CIVIL    LAW. 

(Paternal  Line.) 


IV. 
Gt.  Gt.  Grand- 
father. 


III. 

Great 

Gra  nd father. 


II. 

Grandfather. 


I. 

Father. 


O. 

Intestate. 


I. 
Son. 


II. 

Grandson. 


III. 
Great- 
grandson. 


V. 

Great- 
er anduncle. 


IV. 

Great-uncle. 


III. 

Uncle. 


II. 
Brother. 


V. 

Great-uncle"  s 
Son. 


IV. 
Cousins-ger- 


III. 
Nephew. 


VI. 
2d  Cousin. 

V. 

1st  Cousin  s 

Son. 

IV. 

Nephew's 
Son. 

TITLE   BY   DESCENT.  41 

parents  by  right  of  representation.  The  right  of  inheritance 
thus  secured  is  further  restricted  to  the  adopted  parent  and  pre- 
cludes an  inheritance  from  the  actual  children  of  such  adopted 
parent,14  while  the  right  of  inheritance  by  the  adoptive  parents 
from  the  child  is  confined  to  such  property  as  he  had  received 
through  them,  and,  as  a  rule,  they  are  expressly  prohibited 
from  inheriting  any  property  which  the  child  received  from 
his  own  kindred  by  blood.15  As  against  the  adopted  child, 
the  statute  should  be  strictly  construed,  being  in  derogation 
of  the  general  law  of  inheritance,  which  is  founded  on  natural 
relationship,  and  is  a  rule  of  succession  according  to  nature, 
which  has  prevailed  from  time  immemorial. 

It  will  thus  be  seen  how  important  a  succession  through 
adoption  may  become  in  the  determination  of  land  titles,  and 
the  strictness  necessary  on  the  part  of  examiner  and  counsel 
in  the  investigation  of  questions  of  this  nature.  Where  title 
is  claimed  through  a  descent  by  adoption,  a  general  summary 
of  the  proceedings  creating  the  relation  should  appear  and  the 
full  and  perfect  title  of  the  adoptive  heir  should  be  deducible 
of  record  and  in  strict  conformity  to  the  statute.  The  rights 
of  inheritance  acquired  by  an  adopted  child  under  the  laws 
of  a  particular  State  are  recognized  and  upheld  in  every  other 
State,  so  far  as  they  are  not  inconsistent  with  its  own  laws 
and  policy,16  but  in  the  absence  of  statutory  directions  the 
general  rules  of  descent  must  govern  as  in  other  cases.17 

§  34.  Proof  of  Heirship.  Though  title  vests  in  the  heir 
by  operation  of  law  immediately  on  the  death  of  the  ancestor, 
yet  purchasers  desire,  and  should  have,  affirmative  evidence 
that  the  person  asserting  such  title  is  justified  in  so  doing, 
and  this  is  furnished  by  the  proceedings  of  the  probate  court. 
In  all  abstracts  the  interval  of  title  between  the  deed  by  which 
the  decedent  became  seized  and  that  which  purports  to  be  a 

l4Barnhizel    V.    Ferrell,    47    Ind.       26;    see,   also,   Reinders   v.   Kappel- 
335;   Keegan  V.   Geraghty,    101    111.       mann,  68  Mo.  4S2. 
26.  ig  Ross  v.  Ross,  129  Mass.  243. 

15  Keegan   v.    Geraghty,    101    111.  17  Reinders    v.    Kappelrnann,    68 

Mo.  482. 


42  ABSTRACTS    OF    TITLE. 

conveyance  by  the  heirs,  should  be  filled  by  a  summary  or 
abridgement  of  the  proceedings  in  probate,  showing  the  death 
of  the  intestate,  proof  of  heirship  by  those  asserting  title,  and 
a  satisfactory  settlement  of  the  estate,  for  until  all  this  has 
been  accomplished  the  title  of  the  heirs  is  liable  to  be  defeated 
by  a  sale  made  by  the  administrator,  as  will  also  the  title  of 
one  purchasing  from  them.18  This  is  a  necessary  result  of  the 
rule  of  law,  that  the  intestate's  property  is  primarily  holden 
for  the  payment  of  his  debts,  and  may  be  sold  by  his  admin- 
istrator for  that  purpose.  Such  a  sale  necessarily  defeats  all 
hereditary  titles. 

§  35.  Proof  of  Death.  The  recitals  of  the  essential  facts 
necessary  to  confer  jurisdiction,  in  the  decrees  and  judgments 
of  courts  of  exclusive  though  of  limited  jurisdiction,  are  prima 
facie  evidence  of  the  facts  so  recited.  Upon  this  principle 
it  has  been  repeatedly  declared  that  the  grant  of  letters  testa- 
mentary or  administration  is  competent  evidence  of  the  death 
of  the  testator  or  intestate,19  and  in  support  of  titles  claimed 
by  descent  is  of  the  highest  character  of  evidence  of  title  in  the 
heir.  Usually  no  other  proof  will  be  required  or  need  be 
shown. 

§  36.  Conveyances  by  Heirs.  Few  titles  are  to  be  ac- 
cepted with  greater  caution,  than  those  asserted,  and  purported 
to  be  conveyed,  by  persons  claiming  to  be  the  heirs  at  law  of 
the  person  last  seized,  in  the  absence  of  full  compliance  with  pre- 
scribed regulations  concerning  the  descent  and  distribution  of 
intestate  estates.  Too  frequently,  from  various  motives,  no 
probate  is  ever  had,  and  the  children,  or  other  heirs,  of  the 
decedent  unite  to  convey  their  interests  describing  themselves 
in  such  conveyance  as  "  children  and  heirs  at  law  "  of  such 
decedent.  In  England,  a  pedigree  would  accompany  a  convey- 
ance of  this  character,  fixing,  by  reference  to  the  rules  of  de- 
scent, the  nature  and  extent  of  the  interest  owned  by  each  heir. 
In  the  United  States,  the  paucity  of  family  records  and  the 

is  Hill  v.  Treat,  67  Me.  501.  307;   Welch  v.  E.  R.  Co.,  53  N.  Y. 

19  Comstoek  V.  Crawford,  3  Wall.  610;  Jeffers  V.  Radcliff,  10  N.  H. 
396;    Belden   v.   Meeker,   47    N.    Y.       242. 


TITLE    BY   DESCENT.  43 

method  of  compiliDg  same,  would  render  a  pedigree  of  little 
value,  even  were  they  in  use,  and  the  examining  counsel,  if 
doubts  arise,  usually  resorts  to  the  doubtful  alternative  of  an 
affidavit  to  prove  the  fact  of  heirship  and  bolster  up  the  title, 
the  affidavit,  in  many  instances,  being  entitled  to  less  cre- 
dence than  the  deed  it  supplements.  A  title  resting  on  no  better 
foundation  than  a  deed  of  this  character,  unless  reinforced  by 
the  statute  of  limitations,  is  entitled  to  little  consideration,  and 
is  liable  to  be  defeated  at  any  time  before  the  bar  of  the  statute 
has  interposed.  ISTor  can  the  purchaser  know,  unless  personally 
cognizant  of  the  facts,  that  all  the  heirs  have  united  in  the 
conveyance,  or  that  they  are  qualified  to  convey ;  or  that  a 
widow's  dower  may  not  greatly  depreciate  the  value  of  the 
property  thus  acquired. 

In  this  country,  where  all  the  heirs  are  allowed  an  equal 
representation,  partition  is  frequently  made  by  the  heirs  be- 
tween themselves  without  the  intervention  of  a  court,  and  while 
such  partitions  are  regarded  as  valid,  yet  when  made  of  an 
unprobated  estate  confusion  and  uncertainty  are  greatly  aug- 
mented, and  purchasers  should  decline  the  title  thus  derived 
as  affording  no  measure  of  safety.  Where  affidavits  are  re- 
sorted to  to  prove  heirship,  death  of  ancestor,  etc.,  they  should 
be  well  authenticated  as  well  as  positive  in  their  averments; 
but  however  well  framed  they  may  be,  they  afford  evidence  of 
the  lowest  order  only.  Where  partition  is  the  result  of  a 
regular  judicial  proceeding  the  foregoing  observations  do  not 
apply,  even  though  there  has  been  no  probate  of  the  ancestor's 
estate.  In  all  properly  conducted  suits  for  partition  a  proof 
of  heirship  is  required  before  division  and  the  fact  of  heirship 
must  be  found  by  the  decree  entered  in  the  suit. 


CHAPTER  IV. 


TITLE  BY  PURCHASE. 


§  37. 

Nature   of  the   title. 

§  48. 

Riparian  titles. 

38. 

Deed. 

49. 

Dedication. 

39. 

Devise. 

50. 

Confirmation. 

40. 

Public   grant. 

51. 

Occupancy. 

41. 

Estoppel. 

52. 

Abandonment. 

42. 

Technical  estoppel. 

53. 

Eminent  domain. 

43. 

Equitable  estoppel. 

54. 

Title    acquired    by    eminent 

44. 

Relation. 

domain. 

45. 

Prescription   and   limitation. 

55. 

Escheat. 

46. 

Accretion  and  reliction. 

56. 

Confiscation. 

47. 

Avulsion. 

57. 

Forfeiture. 

§  37.  Nature  of  the  Title.  Purchase  is  a  generic  term 
which  includes  every  mode  of  coming  to  an  estate,  except  by 
inheritance,  though  in  its  more  limited  sense  it  is  applied  only 
to  the  acquisition  of  lands  by  way  of  bargain  and  sale  for 
money  or  other  consideration.  Neither  law  writers  nor  courts 
seem  to  have  ventured  on  a  more  extended  definition,  if  indeed 
one  can  be  framed,  and  the  one  above  given  has  come  down 
unchanged  from  Blackstone,  who  in  turn  borrowed  it  from  ear- 
lier writers. 

There  are  four  principal  methods  recognized  of  acquiring 
title  by  purchase,  to  wit :  by  deed,  devise,  prescription  or  limi- 
tation and  escheat.  To  these  may  be  added  title  accruing 
through  operations  of  nature;  as  accretion,  reliction  and  avul- 
sion, as  well  as  such  as  result  from  our  political  and  civil 
relations;  as  eminent  domain,  confiscation  and  forfeiture. 
Some  writers  still  farther  extend  the  list  by  the  addition  of 
abandonment,  occupancy  and  estoppel.  The  two  former  of 
these  are  not  known  in  the  United  States,  while  the  latter  is 
not,  strictly  speaking,  a  method  of  acquiring  title  at  all,  but 
simply  a  recognition  of  existing  titles. 


TITLE    BY    TURCIlASE.  45 

In  the  paragraphs  following,  no  attempt  lias  been  made  at 
systematic  treatment  of  the  topics  above  mentioned,  and  only 
those  general  features  of  interest  to  the  examiner  of  titles  will 
be  presented. 

§  38.  Deed.  Title  by  deed  is  the  most  common  form  of 
purchase,  and  that  by  which  the  great  bulk  of  all  the  real 
property  in  the  country  is  directly  held.  The  term  "  deed  " 
is  very  comprehensive  in  its  signification,  and  denotes  not 
only  all  classes  of  instruments  for  the  conveyance  of  land,  but 
any  instrument  in  writing  under  seal,  whether  relating  to 
land  or  any  other  matter.  In  its  popular  acceptation,  however, 
it  is  confined  to  conveyances  of  land,  or  estates  or  interests 
therein,  and  is  still  further  restricted  in  its  meaning  to  ab- 
solute sales,  as  distinguished  from  mortgages,  indicating  condi- 
tional sales,  though  the  latter  are  as  essentially  deeds  as  the  for- 
mer. In  its  broad  signification  it  is  the  highest  form  of  ex- 
pression of  title  known  to  the  law. 

§  39.  Devise.  Xext  to  deeds,  testamentary  conveyances 
form  the  most  common  vehicle  for  the  transfer  of  interests 
or  estates  in  land,  the  instrument  for  affecting  a  transfer  be- 
ing called  a  will;  the  subject-matter  as  well  as  the  title  by  which 
same  is  acquired,  a  devise;  and  the  recipient  of  the  testator's 
bounty,  a  devisee.  A  will,  which  is  effective  as  a  conveyance 
only  at  the  maker's  death,  is  from  its  own  nature  ambulatory 
and  revocable  during  his  life,  and  it  is  this  ambulatory  quality 
which  forms  the  chief  characteristic  of  wills ;  for  though  a 
disposition  by  deed  may  postpone  the  possession  or  enjoyment, 
or  even  the  vesting  of  an  estate  until  the  death  of  the  disposing 
party,  yet  the  postponement  in  such  cases  is  produced  by  ex- 
press terms  and  does  not  result  from  the  nature  of  the  instru- 
ment. Title  by  devise  is  of  the  highest  dignity,  and  effective 
for  all  purposes,  yet  it  may  be  defeated  in  the  same  manner 
as  a  title  by  descent,  when  in  the  course  of  administration  it 
becomes  necessary  to  sell  the  testator's  land  for  the  payment  of 
his  debts. 

§  40.  Public  Grant.  For  purposes  of  convenience  a  dis- 
tinction is  made  between  conveyances  by  the  sovereign  and  deeds 


46  ABSTRACTS    OF    TITLE. 

of  the  individual.  Public  grants,  when  forming  the  founda- 
tion of  title,  are  usually  classed  separately  from  other  forms  of 
conveyance  and  constitute  a  special  department  in  all  works 
treating  of  titles  or  estates.  The  original  divesture  of  title  by 
the  government  may  be  effected  in  a  variety  of  ways,  either  of 
which  will  be  sufficient  for  the  purpose  intended.  The  usual 
method  is  by  patent  issued  in  conformity  to  prescribed  legal 
formalities,  though  government  may  make  a  grant  by  a  law  as 
effectually  as  by  a  patent  issued  in  pursuance  of  a  law ;  *  and  a 
confirmation  by  law  of  a  claim  of  title  in  public  lands  is  to  all 
intents  and  purposes  a  grant  of  such  lands.2  The  original 
grant,  whatever  may  be  its  form,  is  the  first  link  in  the  chain  of 
title,  and  whenever  practicable  should  constitute  the  initial 
of  the  abstract,  as  the  basis  upon  which  all  after-acquired  titles 
and  derivative  interests  rest. 

§  41.  Estoppel.  Title  by  estoppel,  as  defined  by  Wash- 
burn, "  is  where  equity,  and  in  some  cases  the  law,  in  order 
to  accomplish  the  purposes  of  justice  which  can  not  be  other- 
wise reached,  draws  certain  conclusions  from  the  acts  of  one 
party  in  favor  of  another,  in  respect  to  the  ownership  of  lands, 
which  it  does  not  allow  the  first  to  controvert  or  deny."  3 
Strictly  speaking,  a  title  is  rather  presumed  than  acquired  by 
estoppel,  which  can  operate  neither  to  divest  nor  transfer  an  es- 
tate, and  the  parties  are  precluded  by  former  acts  from  as- 
serting anything  to  the  detriment  of  the  title. 

Estoppels  are  not  favored  in  law,  for  the  object  of  the  ad- 
ministration of  justice  is  to  discover  and  apply  the  truth;  but 
there  are  cases  in  which  the  courts  are  bound  to  say  to  a  liti- 
gant that  he  has  to  his  own  advantage,  or  to  the  injury  of  his  ad- 
versary, asserted  that  which  is  false,  and  that,  having  done 
so,  he  must  be  forever  forbidden  to  unfold  for  his  own  benefit 
the  truth  of  the  matter.4 

lHall  v.  Jarvis,  65  111.  302;  Stra-  3  3   Wash.   Real  Prop.    (4th  Ed.) 

ther  v.  Lucas,  12  Pet.  411;  Mayo  V.  70. 

Libby,  12  Mass.  339.  4  Abbott   v.    Wilber,   22   La.   Ann. 

2Challefoux  v.  Ducharme,  4  Wis.  368;  Gray  v.  Pingree,  17  Vt.  419. 
554. 


TITLE    BY    I'UKCIIASE.  47 

Mutuality  is  an  essential  ingredient  of  estoppels,  and  it  fol- 
lows from  the  very  principle  on  which  the  whole  doctrine  rests, 
that  they  operate  licit  her  in  favor  of  nor  against  strangers,  but 
affect  only  the  parties,  and  their  privies  in  blood,  estate,  or  in 
law.  A  third  party  derives  no  advantage  from,  nor  can  he  be 
bound  by  an  estoppel,  and  this  rule  applies  equally  whether 
the  estoppel  arises  by  record,  deed,  or  matter  in  pais.5  Es- 
toppels are  classified,  according  to  their  nature,  as  technical. 
or  by  record  or  deed,  and  equitable,  or  in  pais.  Courts  at  the 
present  day  incline  to  restrict  the  doctrine  of  technical  estoppel, 
and  to  favor  and  extend  equitable  estoppel.6 

§  42.  Technical  Estoppel.  The  estoppel  arising  from 
deeds  and  records  is  that  which  directly  concerns  an  examiner 
of  titles,  and  is  really  the  only  question  of  this  nature  on  which 
he  can  be  called  to  pass.  Matters  in  pais,  from  their  nature, 
are  not  presented  to  him,  nor  are  they  effective  in  questions 
of  title  until  presented  for  determination  to  some  competent  tri- 
bunal, when  they  become  matters  of  record  and  operative,  if 
at  all,  as  technical  estoppel. 

Estoppel  by  record  is  based  upon  the  rulings  and  determina- 
tions of  the  courts,  and  proceedings  had  therein,  which  are  con- 
sidered at  length  in  other  portions  of  the  work.  Verdicts 
and  judgments  are  conclusive  by  way  of  estoppel,  only  as  to 
facts  without  the  proof  or  admission  of  which  they  could  not 
have  been  rendered,7  or  of  matters  material  to  the  decision  of 
the  cause,  and  which  the  parties  might  have  had  decided,  al- 
though not  actually  litigated,8  but  not  as  to  facts  not  essential 
to,  although  consistent  with  the  general  verdict  or  decree  en- 
tered in  the  case.9  The  estoppel  of  a  judgment  extends  only 
to  the  question  directly  involved  in  the  issue,  not  to  any  in- 
cidental or  collateral  matters,  although  they  may  have  arisen 
and  been  passed  on,10  and  is  effective  only  as  between  the  orig- 

5  Chope  v .  Lorman,  20  Mich.  327 ;  8  Lindsley  V.  Thompson,    1   Tenn. 

Simpson  v.  Pearson2  31  Ind.  1;  Mc-  Ch.    272;    Buck   v.    Collins,    69   Me. 

Donald  v.  Gregory,  41  Iowa,  513.  445. 

estate  v.  Pepper,  31  Ind.  76.  9  Burlen    v.    Shannon,    99    Mass. 

7  Burlen    v.    Shannon,    99    Mass.  200. 

200.  10  Lewis'    Appeal,    67    Penn.    St. 


48  ABSTRACTS    OF    TITLE. 

inal  parties  thereto  or  their  privies.11  It  must  equally  estop 
both  parties  thereto,  or  it  can  not  be  set  up  by  either,12  and 
is  not  available  for  or  against  a  stranger.13  The  reversal  of 
a  judgment  destroys  its  efficacy  as  an  estoppel.14 

Estoppel  by  deed  arises  from  the  provisions  contained  in 
instruments  for  the  conveyance  of  land,  either  by  recital,  ad- 
mission, covenant  or  otherwise,  whether  in  express  terms  or  by 
necessary  implication,  and  parties  giving  and  receiving  such 
deeds,  together  with  their  privies,  are  estopped  from  denying 
the  operation  thereof  according  to  the  manifest  intent.15  In 
controversies  concerning  the  title  to  land  the  question  of  estoppel 
arises  most  frequently  in  construing  the  effect  of  covenants. 
Thus,  if  a  person  having  no  title  to  land  conveys  the  same  with 
a  general  warranty  and  afterward  acquires  title,  such  acquisi- 
tion will  inure  to  the  benefit  of  the  grantee,  because  the  grantor 
is  estopped  to  deny,  against  the  terms  of  his  own  warranty, 
that  he  had  the  title  in  question.16  The  mischief  of  the  rule  is 
where  a  grantor  who  has  conveyed  without  having  title  subse- 
quently acquires  same  and  then  conveys  to  a  third  party.  Usu- 
ally, such  third  party  would  look  no  farther  than  the  acquisi- 
tion of  title  by  his  grantor,  and,  relying  on  such  fact,  would 
pay  the  purchase  price  and  take  a  deed.  Yet,  the  deed,  in  such 
a  case,  would  convey  no  title,  if  the  prior  deed  of  his  grantor 
was  then  of  record,  for,  by  the  rule  of  estoppel,  the  title  passed, 
or  inured,  to  the  first  grantee  the  moment  the  grantor  became 
clothed  therewith.17  But  this  effect  does  not  extend  to  any 
other  covenants  than  that  of  warranty.     The  other  covenants 

153;    Dixon    V.    Merritt,    21    Minn.  Atlantic  Dock  Co.  v.  Leavitt,  54  N. 

196;  Providence  V.  Adams,  11   R.  I.  Y.   35;    Foster   v.   Young,   35    Iowa, 

190.  27;    Scoffin   v.   Grandstaff,   12   Kan. 

1 1  McDonald  V.  Gregory,  41  Iowa,  467. 

513.  16  Burtners    v.    Keran,    24    Gratt. 

12  Stoddard   v.    Burton,   41    Iowa,  (Va.)  43;  Wiesner  v.  Zaun,  39  Wis. 
582.  188;    Clark  v.   Baker,    14  Cal.   612; 

13  Mayo  v.  Wood,  50  Cal.   171.  Robinson  v.  Douthitt,   64   Tex.   101. 

14  Smith  V.   Frankfield,   77   N.  Y.  1 7  Morrison   v.   Caldwell,  5  T.   B. 
414.  Mon.   (Ky.)   426;  Wilson  v.  Thraup, 

l5Taggart  V.  Risley,  4  Oreg.  235;       2   Cow.    (N.   Y.)    195;   Kirkaldie  v. 
Tobey  v.   Taunton,    119   Mass.   404;        Larrabee,  31  Cal.  455.     See  the  re- 


TITLE   BY   PURCHASE.  49 

are  personal  only.  !Nor  does  the  rule  extend  to  covenants  by 
"a  married  woman,  except  in  States  where  married  women  have 
been  expressly  enabled  by  statute  to  enter  into  covenants.18 

Although  a  grantor  can  not  set  up  a  hostile  title  existing 
at  the  time  of  his  conveyance,  because  he  is  estopped  by  his 
covenants,  yet  if  the  deed  be  a  mere  quitclaim,  without  cove- 
nants, and  purports  to  convey  nothing  but  the  present  interest 
of  the  grantor  in  the  premises,  whatever  that  interest  may  be, 
without  denning  the  character  of  the  interest,  or  affirming  that 
he  has  an  interest  in  the  premises,  he  is  not  debarred  from 
subsequently  acquiring,  and  setting  up,  any  other  title,  whether 
existing  at  the  time  of  his  conveyance  or  subsequently  created.19 
It  has  been  held,  in  a  late  case,  that  the  doctrine  of  covenants 
for  title,  inuring  on  principles  of  estoppel  in  favor  of  a  subse- 
quent grantee,  is  not  to  be  carried  so  far  as  to  charge  a  pur- 
chaser, or  his  attorney  examining  title  for  him,  with  construc- 
tive notice  of  deeds  recorded  before  the  vendor  has  any  record 
title,  and  that  such  purchaser,  finding  an  apparent  title  of  rec- 
ord, may  rely  upon  it,  and  is  not  required  or  expected  to  look 
further,20  yet  such  decision  seems  to  be  founded  on  doubtful 
authority  and  is  opposed  to  the  great  bulk  of  American  cases 
on  the  subject.21 

§  43.  Equitable  Estoppel.  An  estoppel  in  pais  rests 
upon  the  principle  that  a  party  has  misled  another  to  his  preju- 
dice, under  such  circumstances  that  it  would  be  a  fraud  for 
him  to  assert  what  may  be  the  truth.  Hence,  to  raise  an  es- 
toppel from  former  declarations  or  admissions  by  a  party  to 
prevent  him  from  setting  up  his  title  to  property,   the  facts 

marks   of  Mr.   Rawle   in   opposition  20  Dodd  v.  Williams,  3  Mo.  App. 

to   the   doctrine.     Rawle    on    Couts.  278;    see  also   State  v.   Bradish,   14 

(5th  Ed.),  §   259.  Mass.  296. 

'  18  Wilson  v.   King,   23  N.   J.  Eq.  21  Logan    v.    Steel,    4   Mon.    433 

150.  Mitchell   V.   Pettee,   2   W.   Va.   470 

19  Bruce    v.    Luke,    9    Kan.    201 ;  Bates    v.    Norcross,     17    Pick.     14 

Read   v.   Whittemore,   60    Me.    479;  Clark   V.    Baker,    14    Cal.    612;    De- 

Sydnor    v.    Palmer,    29    Wis.    229 ;  Wolf  v.  Hayden,  24  111.  525. 
Shumaker   v.  Johnson,   35   Ind.   33; 
Graham  v.  Graham,  55  Ind.  23. 
4 


50  ABSTRACTS    OF    TITLE. 

must  show:  (1.)  That  when  making  the  statements  or  ad- 
mission relied  upon  he  was  apprised  of  the  true  state  of  his 
own  title.  (2.)  That  he  made  the  statement  or  admission  with 
the  express  intention  to  deceive,  or  with  such  careless  or  cul- 
pable negligence  as  to  amount  to  constructive  fraud.  (3.) 
That  the  other  party  had  neither  knowledge  of  the  true  state 
of  the  title  nor  convenient  means  of  acquiring  such  knowledge- 
by  the  use  of  ordinary  diligence.  (4.)  That  he  relied  upon 
such  statement  or  admission,  and  will  be  injured  by  allowing 
its  truth  to  be  disproved.22  It  will  be  seen  that  the  important 
and  primary  ground  of  estoppel  in  pais  is,  that  it  would  be  a 
fraud  in  a  party  to  assert  what  his  previous  conduct  had  de- 
nied, when  on  the  faith  of  that  denial  others  have  acted,23  but 
no  man  can  set  up  another's  act  or  declaration  as  the  ground 
of  an  estoppel,  unless  he  has  himself  been  deceived  by  it,24  and 
a  party  can  never  be  estopped  by  an  act  that  is  illegal  and 
void.25 

An  estoppel  in  pais,  unlike  that  by  deed,  operates  only  on 
existing  rights.  Thus  a  person  who,  while  having  no  title  in 
himself,  induces  another  to  purchase  land  at  a  sheriff's  sale, 
by  his  representations  that  an  unimpeachable  title  will  pass  by 
such  sale,  is  not  precluded  from  setting  up  afterward  an  ad- 
verse title  in  himself.26 

At  law,  the  doctrine  of  equitable  estoppel  can  not  be  applied 
to  work  a  transfer  of  property,  which,  by  the  statute  of  frauds, 
can  be  effected  only  by  a  writing,  and  the  legal  title  must  al- 
ways prevail,27  yet,  although  a  party  can  not  divest  himself  of 
an  estate  by  parol,  he  may,  without  writing  so  conduct  himself 

22  Martin    v.    Zellerbach,    38    Cal.  McKinzie  V.  Steele,  18  Ohio  St.  38; 
300;  McCabe  V.  Raney,  32  Ind.  309;  Devries  v.  Haywood,  64  N.  C.  83. 
Nugent    V.    Cincinnati,    etc.,    R.    R.  25  Mattox   v.   Hightshue,   39   Ind. 
Co.,    2    Dinsey     (Ohio),    302;    Hal-  95. 

loran    V.    Whitcomb,    43    Vt.    306 ;  26  Donaldson   v.    Hibner,    55   Mo. 

Horn  V.  Cole,  51  N.  H.  287;   Clark  492. 

v.    Coolidge,   8   Kan. '  189 ;    Mallony  27  Kelly    v.    Hendricks,    57    Ala. 

V.  Horan,  49  N.  Y.  111.  193;   Hayes  v.  Livingston,  34  Mich. 

23  Rice  v.  Bunce,  49  Mo.  231.  384. 

24  Simpson  v.  Pearson,  31  Ind.  1; 


TITLE   BY   PURCHASE.  51 

with  reference  to  it  that  he  will  he  estopped  afterward  to  assert 
a  claim  thereto ;  and  this  principle  is  applied  without  reference 
to  the  statute  of  frauds.28 

The  doctrine  of  estoppel  does  not  ordinarily  apply  to  a  State 
as  it  does  to  individuals.  The  sovereign  power  is  but  a  trustee 
for  the  people.  It  acts  by  its  agents  and  the  people  should 
not  be  bound  by  any  statement  of  facts  made  by  those  agents. 
For  their  benefit  the  truth  may  always  be  shown,  notwithstand- 
ing any  former  statement  to  the  contrary.29  This  principle 
rests,  in  part  at  least,  upon  the  general  doetrine  that  the  State 
can  not  part  with  its  title  to  land  except  by  grant  or  other 
record  evidence.30  An  apparent  exception  has  been  said  to 
arise  in  those  cases  in  which  the  act  sought  to  be  made  binding 
was  done  in  its  sovereign  capacity  by  legislative  enactment  or 
resolution,31  but  this  is  not  so  much  an  exception  to  the  gen- 
eral doctrine  of  estoppel,  by  acquiescence  in  an  authorized  act 
of  a  mere  subordinate  agent,  as  it  is  an  original  binding  affirm- 
ative act  on  the  part  of  the  State  itself,  made  in  the  most  solemn 
manner  in  which  it  can  give  expression  to  the  sovereign  will.32 

§  44.  Relation.  The  doctrine  of  relation  is  applied  in 
conveyances  of  land  to  equitable  titles  which  subsequently  ma- 
ture, either  by  operation  of  law  or  act  of  the  parties,  into  legal 
titles,  and  where  several  acts  concur  to  make  a  conveyance,  es- 
tate, or  other  thing,  the  original  act  will  be  preferred,  and  to 
this  the  other  acts  will  be  said  to  have  relation. 

The  fiction  of  relation  is,  that  the  intermediate  bona  fide 
alienee  of  the  incipient  interest  may  claim  that  the  grant  inures 
to  his  benefit  by  an  ex  post  facto  operation.  In  this  way  he 
receives  the  same  protection  at  law  that  a  court  of  equity  could 
afford  him.  Thus,  the  assignee  of  a  certificate  of  the  purchase 
of  school  land,  the  purchase  money  being  all  paid,  conveyed  the 

28  R.  R.  Co.  v.  Ragsdale,  54  Miss.  30  Saunders  V.  Hart,  57  Tex.  8. 
200.  31  Alexander  v.  State,  56  Ga.  486; 

29  Fannin  Co.  v.  Riddle,  51  Tex.  Enfield  v.  Permit,  5  N.  H.  285; 
360;  Farish  v.  Coon,  40  Cal.  50;  Commonwealth  V.  Andre,  3  Pick. 
Johnson   v.    U.    S.,    5   Mason   C.   C.  224. 

425.  32  Saunders  v.  Hart,  57  Tex.  8. 


52  ABSTRACTS    OF    TITLE. 

premises  by  quitclaim  deed ;  a  few  days  afterward  lie  received 
the  patent,  and  it  was  held  that  the  legal  title  passed  to  his 
grantee.  So,  where  a  deed  is  made  in  pursuance  of  a  recorded 
land  contract,  it  relates  back  to  the  date  of  the  contract,  and 
conveys  the  title  as  it  stood  at  the  time  the  contract  was  re- 
corded.33 The  same  doctrine  also  applies  to  grants  of  unlocated 
land,  the  subsequent  location  operating  by  relation  to  the  orig- 
inal grant.34 

The  doctrine  of  relation  is  a  fiction  of  law  adopted  by  the 
courts,  solely  for  the  purpose  of  justice,  where  several  proceed- 
ings are  required  to  perfect  a  conveyance  of  land;  it  is  only 
applied  for  the  security  and  protection  of  persons  who  stand 
in  some  privity  with  the  party  that  initiated  the  proceedings 
and  acquired  the  equitable  claim  or  right  to  the  title.  It  does 
not  affect  strangers  not  connecting  themselves  with  the  equita- 
ble claim  or  right  by  any  valid  transfer  from  the  original  or 
any  subsequent  holder.35 

§  45.  Prescription  and  Limitation.  Prescription  is  that 
title  which  arises  from  long  and  continued  possession  of  prop- 
erty, and  is  founded  upon  the  presumption  that  the  party  in 
possession  would  not  have  been  allowed  by  other  claimants  to 
hold  same  without  a  just  and  paramount  right.  Prescription, 
in  the  ancient  sense  of  the  word,  rests  upon  the  supposition  of 
a  grant,  and  the  use  or  possession  on  which  such  title  is  founded 
must  be  uninterrupted  and  adverse,  or  of  a  nature  to  indicate 
that  it  is  claimed  as  a  right,  and  not  the  effect  of  indulgence, 
or  of  any  compact  short  of  a  grant.36  Presumptions  of  this 
nature  are  adopted  from  the  general  infirmity  of  human  na- 
ture, the  difficulty  of  preserving  muniments  of  title,  and  the 
public  policy  of  supporting  long  and  uninterrupted  possessions. 
They  are  founded  upon  the  consideration  that  the  facts  arc 
such  as  could  not,  according  to  the  ordinary  course  of  human 
affairs,  occur,  unless  there  was  a  transmutation  of  title  to,  or 

33  Welch   v.  Dutton,   79   111.   465;  35  Gibson   V.    Chouteau,    13    Wall 
Snapp  v.  Pierce,  24  111.  156.  92. 

34  Dequindre  V.  Williams,  31  Ind.  36  Gayetty   v.   Bethune,    14   Mass. 
444.  49;   Odiorne  v.  Wade,  5  Pick.  421. 


TITLE   BY   PURCHASE.  53 

an  admission  of  an  existing  adverse  title  in,  the  party  in  pos- 
session.'57 

The  period  of  legal  memory,  or  prescription,  does  not,  at 
common  law,  extend  farther  back  than  sixty  years,38  while 
forty  years  is  usually  a  sufficient  length  of  time  to  establish 
a  prescriptive  title,39  and,  in  general,  it  is  the  policy  of  the 
courts  to  limit  the  presumption  of  grants  to  periods  analogous 
to  those  of  the  statute  of  limitations,  in  cases  where  the  statute 
itself  does  not  apply.40  A  title  founded  upon  prescription  or 
limitation,  accompanied  by  an  adverse  user  or  enjoyment,  is 
recognized  as  valid  and  substantial,  as  against  all  save  the 
sovereign  power,41  and  in  the  older  States  of  the  Union,  where 
it  is  often  difficult  to  trace  title  to  its  source,  property  is  freely 
conveyed  on  the  assurance  furnished  by  time  and  the  statute  of 
limitations. 

Twenty  years  is  the  period  ordinarily  fixed  by  the  statute 
in  which  to  perfect  an  adverse  possession  of  lands,  while  in 
case  the  occupant  claims  a  title  exclusive  of  any  other  right, 
founding  such  claim  upon  some  written  instrument,  judgment 
or  decree,  ten  years  is  frequently  sufficient,  and  in  some  States 
even  a  shorter  period.42 

§  46.  Accretion  and  Reliction.  Accretion  is  the  in- 
crease of  land,  caused  by  the  addition  made  by  the  washing 
of  the  sea,  a  navigable  river,  or  other  water  course  to  which 
the  land  is  contiguous,  whenever  the  increase  is  so  gradual 
that  it  can  not  be  perceived   at  any  one  moment  of  time.43 

3T  Gayetty  v.    Bethime,   14   Mass.  43  Lovingston  v.  St.  Clair  Co..  64 

49;  Rooker  v.  Perkins,  14  Wis.  79;  111.  56;  Krant  v.  Crawford,  18  Iowa, 

Taylor  v.  Watkins,  26  Tex.  688.  554;    Benson    v.    Morrow,    61    Mo. 

38  Coolidge    v.    Learned,    8    Pick.  352.     This   definition  has  its  origin 

504;  Odiorne  V.  Wade,  5  Pick.  421.  in  the   Institutes   of  Justinian,   see 

39Melvin    v.    Whiting,    10    Pick.  Lib.    II,    Tit.    I,    Sec.    20,    and   has 

295.  been  followed  by  courts  and  writers 

40  Hunt  v.  Hunt,  3  Met.  175.  ever    since.     See,    Lammers   v.    Nis- 

41  Gardiner  v.  Miller,  47  Cal.  570.  sen,  4  Neb.  245;  St.  Louis,  etc.,  Ry. 

42  Consult  local  statutes  for  the  Co.  v.  Ramsey,  53  Ark.  314;  Jefferis 
periods  of  limitation,  and  the  char-  V.  Land  Co.,  134  U.  S.  178. 

acter    of    the    occupancy    necessary 
to  perfect  title. 


54  ABSTRACTS    OF    TITLE. 

The  increase  or  deposit  obtained  by  accretion  is  technically 
called  alluvion,  and  whether  produced  by  natural  or  artificial 
causes  inures  to  the  benefit  of  the  adjacent  territory.44  It  is 
held  by  the  same  title,  and  under  the  same  grant,  as  the  land 
which  it  adjoins,  and  is  subject  to  the  same  liens  and  benefited 
by  the  same  incidents  that  appertain  to  such  adjacent  land.45 
Upon  all  rivers  not  navigable  by  common  law  the  owner  of  the 
land  adjoining  is  prima  facie  owner  of  the  soil  to  the  central 
line  or  thread  of  the  stream  subject  to  the  public  right  of  navi- 
gation.46 The  presumption  will  prevail  in  all  cases  in  favor 
of  the  riparian  proprietor,  unless  controlled  by  some  express 
wrords  of  description  which  exclude  the  bed  of  the  river,  and  in 
all  cases  where  the  river  itself  is  used  as  a  boundary,  the  law 
will  expound  the  grant  as  extending  to  the  center  or  thread.47 

Upon  navigable  lakes  and  rivers,  where  the  public  ease- 
ment is  not  interrupted,  the  question  of  navigability,  as  at  com- 
mon law,  does  not  arise,  and  the  riparian  proprietor  will  still 
be  entitled  to  all  accretions  without  regard  to  navigability.48 

The  general  rule  above  stated  applies  as  well  to  land  which 
by  erosion  becomes  riparian,  and  where  through  the  gradual 
washing  away  of  intervening  land  an  originally  remote  tract 
becomes  riparian  all  of  the  rights  of  accretion  will  at  once  attach 
thereto.48  * 

In  applying  the  principle  that  land  formed  by  alluvion  is 
the  property  of  the  adjoining  owner,  it  is  quite  immaterial, 
on  non-navigable  streams,  whether  this  alluvion  forms  at  or 
against  the  shore  so  as  to  cause  an  extension  of  the  bank,  or  in 
the  bed  of  the  stream  and  becomes  an  island,49  and  where  an 

44  St.  Clair  Co.  V.  Lovingston,  23       At   common    law    only   tide    waters 
Wall.    (U.   S.)    46,  affirming  64  HI.       are  navigable. 

56;  Adams  v.  Frothingham,  3  Mass.  47  Braxon     v.     Bressler,     64     111. 

352;   People  V.  R.  R.  Co..  42  X.  Y.  4S8;   Ross  v.   Faust,  54  Ind.  471. 
315;    Lockwood    v.    R.    R.    Co.,    37  48  Lovingston  v.  St.  Clair  Co.,  64 

Conn.    387;    Lammers   v.    Nissin,    4  111.  56;   Schurmeir  v.  E.  R.  Co.,  10 

Neb.    245.  Minn.    S2;    Magnolia    v.    Marshall, 

45  Campbell   V.    Gas    Co.,    84   Mo.  39  Miss.   111. 

352;    Gale  v.  Kinzie,  80  111.   132.  4S*  Wells  v.  Bailey,  55  Conn.  292. 

40  Hubbard   v.   Bell,   54    111.    110;  49  Deerfield  v.  Arms,  17  Pick  41; 

Olson     V.     Merrill,     42     Wis.     203.       Granger  r.  Avery,  64  Me.  292. 


TITLE    BY    PURCHASE.  55 

island  is  so  formed  in  the  bed  as  to  divide  the  channel  and  form 
partly  on  each  side  of  the  thread,  the  opposite  sides  belong  to  the 
different  proprietors  and  the  island  should  be  divided  according 
to  the  original  thread. 

The  increase  on  streams,  rivers  and  water  fronts  should  be 
divided  between  the  owners  of  the  shore,  according  to  their 
respective  frontage,  so  as  to  secure  to  each  the  benefits  which 
his  original  frontage  gave  him,  and  for  this  purpose  the  follow- 
ing rule  may  be  employed : 

Measure  the  whole  extent  of  the  ancient  line  on  the  river 
and  ascertain  how  many  feet,  rods,  etc.,  each  proprietor  owned 
on  the  line;  divide  the  newly  formed  line  into  equal  parts  and 
appropriate  to  each  proprietor  as  many  portions  of  this  new 
river  line  as  he  owned  feet  on  the  old.  Then  to  complete  the 
division,  lines  are  to  be  drawn  from  the  parts  at  which  the 
proprietors  respectively  bounded  on  the  old,  to  the  points  thus 
determined  as  the  new  points  of  division  on  the  newly  formed 
shore.  The  new  lines,  thus  formed,  it  is  obvious,  will  be  either 
parallel,  divergent  or  convergent,  according  as  the  new  shore 
line  of  the  river  equals,  exceeds  or  falls  short  of  the  old.50 
This  mode  of  distribution  secures  to  each  riparian  proprietor 
the  benefit  of  continuing  to  hold  to  the  river  shore  whatever 
changes  may  take  place  in  the  condition  of  the  river  or  the  ac- 
cretion. The  rule  will  require  modification  under  particular 
circumstances,  as  for  instance,  if  the  ancient  margin  has  deep 
indentations  or  sharp  projections  the  general  available  line  on 
the  river  ought  to  be  taken,  and  not  the  actual  length  of  the 
margin  as  thus  elongated  by  the  indentations  or  projections. 

A  more  familiar  rule,  and  one  of  general  application  in  the 
West,  is  to  extend  the  original  water  frontage  of  the  respective 
parcels  of  land,  as  nearly  as  practicable  at  right  angles  with  the 
original  shore  line,  or  with  the  course  of  the  river  to  the  thread 
of  the  stream.51 

50  Deer  field  V.  Arms,  17  Pick.  41;  477;  Jones  v.  Johnson,  18  How. 
Batehelder    v.    Keniston,    51    N.    H.       150. 

496;    Thornton   v.   Grant,    10   R.    I.  51  Miller     V.     Hepburn,     8     Bush 

(Ky.),  326. 


56  ABSTRACTS    OF    TITLE, 

The  usual  incidents  of  title  attend  property  acquired  by 
accretion.52  The  right  to  alluvial  formation  is  a  vested  one,  in- 
herent in  the  property  itself,  and  forms  an  essential  attribute 
of  it  in  consequence  of  the  local  situation  of  the  land.53  Re- 
liction differs  from  accretion  only  in  that  it  results  from  the 
gradual  subsidence  of  waters,  the  effect  being  the  same.54  Ac- 
cretion or  reliction  follows  the  title  of  the  land  contiguous  to 
the  alluvion,  but  will  appear  of  record  only  when  surveys  or 
divisions  have  been  made  in  the  manner  above  indicated. 

§  47.  Avulsion.  Avulsion  is  the  reverse  of  accretion,  be- 
ing the  sudden  removal  or  deposit  of  land  by  the  perceptible 
action  of  water;  and  the  term  is  also  applied  to  the  derelict 
left  by  the  sudden  subsidence  of  water  on  the  seashore  or  on 
navigable  rivers.  The  authorities  are  not  altogether  harmoni- 
ous, but  the  majority,  following  the  common  law,  place  the 
title  to  such  derelict  in  the  sovereign.55  In  the  case  of  inland 
navigable  streams,  the  title  depends  upon  local  laws,  some 
States  claiming  the  title  of  the  bed  of  the  stream,  while  others 
concede  it  to  the  riparian  proprietor,  subject  only  to  the  public 
right  of  navigation.  When  title  extends  to  the  middle  of  the 
stream  the  boundary  remains  as  it  was,  irrespective  of  changes 
in  the  channel.56 

§  48.  Riparian  Titles.  By  the  common  law  of  England 
the  title  to  land  under  water,  as  well  as  the  shore  below  ordi- 
nary high  water  mark  in  navigable  rivers  and  arms  of  the 
sea,  is  vested  in  the  sovereign  for  the  public  use.  But  as  the 
rivers  of  England  were  comparatively  small,  tide  waters  only 
were  regarded  as  navigable,  and  the  confusion  of  navigable 
with  tide  waters,  found  in  the  monuments  of  the  common  law, 
long  prevailed  in  this  country,  notwithstanding  the  broad  dif- 
ferences  existing  between  the  extent  and  topography  of  the 

52  Gale  V.  Kinzie,  80  111.  132.  55  2    Black.    Com.    262;    Dikes   V. 

53  Kennedy  v.  Municipality  No.  2,       Miller,  24  Tex.  417. 

10    La.    Ann.    54;    St.    Clair    Co.   V.  56  St.    Louis   v.    Rutz,    138   U.    S. 

Lovingston,  23  Wall.    (U.  S.)    46.  226;    Bonewits  V.   Wygant,   75   Ind. 

54  Warren   v.    Chambers,   25   Ark.       41. 
120;     Boorman     v.     Sunnuchs,     42 
Wis.  235. 


TITLE    BY    PURCHASE.  57 

American  continent  and  the  British  islands.  Congress,  by  spe- 
cial provision,  has  fixed  the  status  of  all  navigable  streams  and 
water  ways  in  what  was  formerly  a  portion  of  the  public  do- 
main, by  declaring  that  they  shall  be  deemed  to  be  and  remain 
public  highways,  yet  it  is  clear  that  Congress  did  not  employ 
the  words  navigable  or  non-navigable  in  the  sense  of  being  af- 
fected by  the  ebb  or  flow  of  the  tide.  On  the  contrary,  it  is 
obvious  that  the  words  were  employed  without  respect  to  the 
tide,  and  were  applied  to  territory  situated  far  above  tide 
waters,  and  in  which  there  were  no  salt  water  streams.  Viewed 
in  the  light  of  these  considerations,  the  federal  courts  have 
adopted  the  rule  that  proprietors,  under  titles  derived  from  the 
United  States,  bordering  on  streams  not  navigable,  unless  re- 
stricted by  the  terms  of  the  grant,  hold  to  the  center  of  the 
stream,  while  in  case  of  navigable  rivers  the  title  of  the  riparian 
proprietor  stops  at  the  stream.57 

Nor  will  the  common  law  apply  to  our  great  fresh  water 
lakes,  for  here  there  is  neither  flow  of  the  tide  nor  thread  of 
the  stream,  and  local  law  appears  to  have  assigned  the  shores 
down  to  ordinary  low  water  mark  as  the  boundary  of  the  ri- 
parian proprietor.58 

§  49.  Dedication.  A  dedication  is  an  appropriation  of 
land  to  public  use ;  59  the  public  and  not  merely  a  public  cor- 
poration must  be  the  chief  beneficiary,60  and,  properly  speak- 
ing, there  can  be  no  dedication  to  private  uses.61  Dedication 
is  express,  as  when  made  by  deed  or  other  unequivocal  act  or 

57  R.  R.  Co.  V.  Schurmeir.  7  Wall.  are  appurtenant  to  the  upland,  so 
(U.  S. )  272;  Forsyth  v.  Small,  7  far  as  their  limits  can  be  reason- 
less (C.  Ct.)  201;  Barney  V.  Keo-  ably  identified.  Lincoln  r.  Davis, 
kuk,  4  Otto    (U.   S.),  324.  53  Mich.  375. 

58  Wheeler  t'.   Spinola,   54   N.    Y.  59  1  Bou.  Law  Diet.  443. 

377 ;    Canal    Commrs.    v.    People,    5  60  Todd  v.  R.  R.  Co.,  19  Ohio  St. 

Wend.       (X.      Y.)       423.     Riparian  514. 

rights    upon   the    great    lakes    have  61  M.   E.   Church  v.   Hoboken,   33 

been  held  to  be,  in  theory,  the  same  N.   J.   L.    13.     But   reservations   for 

as  upon  navigable  streams,  and  are  private    use    may    be    made,    which 

not   governed   by   any   such    propri-  confer   much   the  same   rights   upon 

etary    divisions    as    high    and    low  the    beneficiaries    as    do    dedications 

water  mark.     The  submerged  lands  upon  the  public  generally. 


58  ABSTRACTS    OF    TITLE. 

declaration ;  or,  implied,  or  presumed  from  an  acquiescence 
in  the  public  use.62  The  law  requires  no  particular  form  or 
solemnity  to  constitute  a  valid  dedication,  the  intention  of  the 
owner  being  the  vital  principle,  and  this  may  be  evidenced  by 
the  owner's  acts  or  declarations  and  the  circumstances  under 
which  the  user  has  been  permitted.63 

The  question  of  dedication  arises  most  frequently,  in  the 
examination  of  titles,  in  the  construction  of  plats  and  subdi- 
visions, and  must  be  determined  by  reference  to  local  law,  as 
the  common  law  dedication  has  in  many  of  the  States  been  sup- 
plemented by  statute  which  vests  the  legal  title  to  the  dedicated 
tract  in  the  municipality.64  At  common  law,  when  the  right 
of  the  public  to  the  use  of  land  rests  upon  no  other  foundation 
than  a  dedication  to  public  uses,  the  easement  vests  in  the  pub- 
lic while  the  fee  remains  in  the  original  owner,  and  may  be 
conveyed  by  him  to  third  persons ;  but,  in  such  case,  the  right  of 
the  public  to  the  use  is  paramount  to  the  title  of  the  owner  of 
the  fee,  and  does  not  require  the  fee  for  its  protection.65 

§  50.  Confirmation.  Confirmation,  at  common  law,  is  a 
species  of  conveyance  whereby  an  estate  which  was  voidable  or 
inchoate  is  made  valid  and  certain,  or  where  a  particular  in- 
terest is  increased.  It  is  not  an  original  method  of  passing 
title,  and  only  operates  on  an  existing  estate  or  right  in  lands 
by  strengthening  the  title  of  one  who  already  has,  or  claims, 
some  right  or  interest  therein. 

Though  deeds  of  confirmation  are  in  use  between  individuals, 
the  term,  as  indicative  of  a  form  of  title,  is  usually  applied  to 
those  confirmatory  acts  of  government  whereby  inchoate  or 
uncertain  rights  derived  from  the  national  government  or  from 
foreign  powers,  are  ratified  and  approved,  and  relates  to  the 
origin  of  title.     From  the   earliest  period   in   the   history  of 

62  Robertson  V.  Wellsville,  1  79  111.  25;  Downer  v.  R.  R.  Co.,  22 
Bond,  81.  Minn.  251. 

63  Wood  v.  Hurd,  34  N.  J.  L.  87;  65  M.  E.  Church  v.  Hoboken,  33 
Buchanan  v.  Curtis,  25  Wis.  99;  N.  J.  L.  13;  Cincinnati  v.  White, 
Mclntyre  V.  Storey,  80  111.  127;  6  Pet.  (U.  S.)  431 ;  compare  Wilson 
Shear  v.  Stothart,  29  La.  Ann.  630.  v.  Sexton,  27  Iowa,  15. 

64  Chicago,  etc.,   R.   R.   v.   Joliet, 


TITLE    BY    PURCHASE,  59 

the  country,  claims  to  tracts  of  land,  upon  which  persons  had 
settled  and  made  improvements  in  advance  of  the  public  sur- 
veys and  before  the  lands  had  been  offered  for  .sale,  sometimes 
upon  the  express  invitation  of  the  public  authorities  and  some- 
times upon  their  supposed  acquiescence,  have  been  presented 
for  the  equitable  consideration  of  the  government.  Such  claims, 
in  great  numbers,  have  also  arisen  under  other  governments 
from  which  we  have  acquired  territory,  with  treaty  stipulations 
for  their  protection.  Sometimes  such  claims  have  been  sub- 
mitted to  boards  of  commissioners  for  approval  or  rejection; 
sometimes  they  have  been  referred  to  the  judicial  tribunals  for 
determination,  and  sometimes  they  have  been  directly  acted 
upon  by  Congress.  A  confirmation  can  not  strengthen  a  void 
title,  but  only  one  that  is  voidable,  and  is  conclusive  only  as 
between  the  Government  and  the  confirmee.00 

Confirmation,  as  a  basis  of  title,  relates  mainly  to  imperfect 
grants  of  the  French,  Spanish  or  Mexican  Governments,  made 
prior  to  the  annexation  of  the  territory  to  the  United  States, 
and  may  consist  of  the  judgment  or  determination  of  a  board 
of  commissioners  organized  for  that  purpose,  a  judgment  or 
decree  of  the  federal  courts,  or  a  special  act  of  Congress. 
Though  it  has  been  held,  that  a  confirmation  by  law  of  a  claim 
of  title  in  public  lands  is  to  all  intents  and  purposes  a  grant 
of  such  lands,67  yet  it  seems  that  the  legal  title  to  lands  con- 
.  firmed  to  a  private  person  by  act  of  Congress,  or  by  action  of 
Government  tribunals,  remains  in  the  United  States  until  a 
patent  has  issued  therefor,  and,  until  then,  the  confirmee  has 
only  an  equitable  title.68 

66  Meader    v.    Norton,    11    Wall.  claim   should  have  been  recognized 

442.  as   valid   and   entitled   to   confirma- 

67Challefoux     V.     Ducharme,     4  tion,  yet  the  patent,  in  such  cases, 

Wis.   554.  is  only  documentary  evidence  of  the 

68  LeBean    v.    Armitage,    47    Mo.  existence    of   the    title,    or    of    such 

138;  Amesti  v.  Castro,  49  Cal.  328.  equities   respecting  the  claim  as  to 

In   the   settlement    of   these    claims  justify    recognition     and    confirma- 

the  law  has  generally  provided  that  tion.     Morrow   V.    Whitney,    5    Otto 

a  patent  of  the  United  States  should  (U.   S.),   551;    Langdeau   v.  Hanes, 

be  issued  to  the  claimant  when  his  21  Wall.   (U.  S.)  521. 


60  ABSTRACTS    OF    TITLE. 

§  51.  Occupancy.  Title  by  occupancy  forms  a  sub-head 
in  Mr.  Washburn's  admirable  work  on  real  property,69  but 
this  method  of  acquisition  does  not  now  seem  to  be  recognized 
in  the  United  States,  if  indeed  it  ever  existed.  In  its  broad 
sense,  it  is  the  right  or  title  derived  from  an  original  state  of 
nature;  hence  the  American  Indian  holds  the  use  and  enjoy- 
ment of  his  lands  by  occupancy,  and  though  this  title  is  re- 
spected by  the  courts  until  legitimately  extinguished,  it  does 
not  extend  to  property  in  the  soil  and  can  not  be  made  the  sub- 
ject of  transfer,  while  the  Government  has  ever  reserved  the 
exclusive  right  to  extinguish  this  title  by  purchase  or  conquest.70 
In  its  technical  sense  it  was  applied  to  a  method  of  acquisi- 
tion once  in  vogue  in  England,  where  one  was  tenant  for  the 
life  of  another  who  outlived  him.  The  estate  being  a  free-1 
hold  did  not  go  to  his  personal  representatives,  but  not  being 
an  inheritance  could  not  go  to  his  heirs;  and,  as  a 
consequence,  no  one  having  a  legal  right  to  the  remnant  of  the 
estate,  whoever  first  occupied  it  acquired  such  a  title  by  pos- 
session and  occupancy  that  no  one  could  dispossess  him.      This 

69  3  Wash.  Real  Prop.  (4th  Ed.)  declaring  that  "if  at  any  time  any 
50.  of   the    said   Indians    should   be   in- 

70  Johnson  r.  Mcintosh,  8  Wheat.  clined  to  dispose  of  said  lands,"  the 
643 ;  Fletcher  v.  Peck,  6  Cranch.  87.  same  "  shall  be  purchased  only  "  for 
Immediately  after  the  inauguration  the  Crown,  the  ultimate  dominion 
of  President  Washington,  he  laid  and  sovereignty  being  held  to  reside 
before  Congress  a  report  from  the  in  the  discoverer  colonizing  upon 
Secretary  of  War,  acknowledging  the  continent.  In  accordance  with 
the  Indian  right  of  occupancy,  and  this  principle,  beginning  with  the 
recognizing  the  principle  of  acqurr-  treaty  of  1795,  at  Greenville,  the 
ing  their  claims  by  purchase  for  Indian  title  of  occupancy  has  been 
specific  consideration  according  to  gradually  extinguished  by  the 
the  "  practice  of  the  late  English  United  States  in  all  of  the  States 
colonies  and  government  in  pur-  east  of  the  Mississippi,  and  in 
chasing  the  Indian  claims,"  and  the  nearly  all  of  the  States  and  Terri- 
rule  in  that  respect  laid  down  in  tories  west  of  same,  leaving,  in 
the  proclamation  of  Oct.  7,  1763,  some  cases,  remnants  of  tribes,  who 
by  the  King  of  Great  Britain,  in-  have  been  invested  by  Congress 
terdicting  purchases  of  land  by  pri-  Avith  allodial  titles. 

vate   individuals   from   Indians   and 


TITLE    BY    PURCHASE.  Gl 

•was  a  title  by  occupancy.71     Provision  is  made   in   most  of 
the  States  for  an  emergency  of  this  kind. 

§  52.  Abandonment  and  Relinquishment.  This  method 
of  acquiring  or  losing  title  may  be  found  noted  in  nearly  all 
works  on  real  property,  yet  it  seems  to  occupy  a  most  uncertain 
and  indistinct  position.  Easements  and  incorporeal  rights  an- 
nexed to  land,  may  be  lost  by  abandonment.  So  may  a  home- 
stead. So  may  an  incipient  right  to  land,  as  a  location  and 
survey,  or  other  merely  equitable  title  not  perfected  into  a 
grant  or  vested  by  deed,  but  legal  rights,  when  once  vested, 
must  be  divested  according  to  law.72  "  Yet,"  says  one  au- 
thority, "  if  a  person  having  the  disposing  power  absolutely, 
does  an  act  sufficient  in  itself,  legally  to  divest  his  title  with 
the  express  intention  of  relinquishing  and  abandoning  the 
property,  it  is  not  easy  to  perceive  why  he  may  not  do  so. 
Abandonment,  it  is  said,  is  the  relinquishment  of  a  right ;  the 
giving  up  something  to  which  one  is  entitled.  If  the  owner 
sees  proper  to  abandon  his  property,  and  evidences  his  intention 
by  an  act  legally  sufficient  to  vest  or  divest  ownership,  why  may 
he  not  do  so  in  the  case  of  land,  as  well  as  of  a  chattel  ?  It 
might  go  to  the  Government  instead  of  the  first  occupant,  upon 
the  principle  upon  which  land  escheated  or  became  derelict."  73 
It  has  been  observed,  that  a  man  shall  be  held  to  intend  what 
necessarily  results  from  his  own  acts.  Consequently,  when 
property  is  abandoned  under  such  circumstances  as  to  leave  no 
doubt  of  the  fact,  no  one  who  has  taken  possession  of  it  can  be 
required  to  relinquish  it ;  but  abandonment  is  a  question  of  fact 
for  which  no  rule  can  be  formulated,  and  must  be  decided  by 
the  circumstances  of  each  case.74  It  would  seem  that  there  is 
nothing  in  principle  to  prevent  the  owner  from  abandoning  his 
right  of  property  in  land,  provided  the  intention  to  do  so  be 
evidenced  by  an  act  or  deed  legally  sufficient  to  operate  a  di- 

71  3  Wash.  Real  Prop.    (4th  Ed.)        In  this  case  the  owner  filed  a  deed 
50.  of    relinquishment    in    the    General 

72  4    Kent   Com.    448;    Picket    V.       Land  Office. 

Dowling,  2  Wash.   (Va.)   106;  Dikes  74  Corning    V.    Gould,    16    Wend. 

V.  Miller,  24  Tex.  417.  543;   Holmes  V.  R.   R.,  8  Am.  Law 

73  Dikes    v.   Miller,    24   Tex.   417.       Reg.  716. 


62  ABSTRACTS    OF    TITLE. 

vestiture  of  the  title,  yet  this  will  so  seldom  occur  that  a  dis- 
cussion of  it  seems  unnecessary.  Ordinarily  when  title  is  as- 
serted through  this  method,  it  will  be  found  to  depend  more 
on  long  continued  adverse  possession  and  rights  conferred  by  the 
statute  of  limitations. 

Examples  of  relinquishment  may  be  found  in  the  actions 
of  Congress  where  property,  instead  of  being  granted,  is 
relinquished  to  the  donee,  either  with  or  without  conditions 
annexed,  yet  all  of  the  acts  of  this  character  which  have  come 
under  the  observation  of  the  writer,  may  proj)erly  be  classed 
as  dedications,  notwithstanding  the  express  term  "  relinquish- 
ment "  is  used  as  the  operative  word.  This  is  particularly 
true  Where  provision  is  made  for  reverter.75 

§  53.  Eminent  Domain.  One  of  the  sovereign  attributes 
of  the  State,  is  the  right  to  subject  the  private  property  of 
its  citizens  to  public  uses,76  but  with  the  concurrent  obligation 
to  make  just  and  full  compensation  therefor.77  Such  right  is 
inherent  in  the  State,  though  usually  reserved  as  well  in  the 
organic  law  —  the  Constitution ;  and  where  it  is  lodged  to  any 
extent  in  corporations,  is  limited  by  the  uses  for  the  further- 
ance of  which,  on  the  ground  of  public  policy,  it  is  conferred. 
Whatever  exists,  in  any  form,  whether  tangible  or  intangible,78 
is  subject  to  the  exercise  of  this  right  including  the  property 
and  franchises  of  incorporated  companies  as  well  as  individuals. 

The  exercise  of  the  right  of  eminent  domain  is  primarily  and 
mediately  the  act  of  the  State ;  and  corporations  to  which  it  has 
been  delegated,  and  by  which  it  is  immediately  exercised,  are 
but  instrumentalities  of  the  State,  although  they  may  have, 
and  generally  do  have,  corporate  interests  intermingled  and 
growing  out  of  the  exercise  of  this  sovereign  prerogative.79 
Though  the  power  c'an  only  be  exercised  for  a  public  use,  it  has 
never  been  deemed  essential  that  the  entire  community  or  any 
considerable  portion,  should  directly  enjoy  or  participate  in  the 

75  See  19  U.  S.  Stat.  127.  7  7  Chicago  v.  Lamed,  34  111.  203. 

76  United  States  V.  Jones,  109  U.  7S  Eigney  V.  Chicago,  102  111.  64. 
S.  513;  Johnson  v.  R.  R.  Co.,  23  111.  79  Hatch  v.  R.  R.  Co.,  18  Ohio 
202.  St.  92. 


TITLE   BY    PURCHASE.  63 

benefits  to  be  derived  from  the  purpose  for  which  the  property 
is  appropriated.  It  is  enough  if  the  taking  tends  to  enlarge 
the  resources,  increase  the  industrial  energies,  and  promote  the 
productive  power  of  any  considerable  number  of  the  inhabit- 
ants of  a  section  of  the  State,  or  leads  to  the  growth  of  towns 
and  the  creation  of  new  channels  for  the  employment  of  private 
capital  and  labor,  such  results  contributing  indirectly  to  the 
general  welfare  and  prosperity  of  the  whole  community.80 
Compensation  is  always  a  condition  precedent  to  the  appropri- 
ation of  the  property,81  and  when  land  is  acquired  by  the  public 
for  one  particular  use  no  additional  burden  can  be  superadded 
without  further  compensation.82 

§  54.  Title  Acquired  by  Eminent  Domain.  The  gen- 
eral rule  in  this  country  is,  that  the  exercise  of  the  power  of 
eminent  domain,  particularly  when  exerted  in  behalf  of  cor- 
porations, extends  only  to  the  use  of  the  property  appropriated, 
and  does  not  include  the  fee.83  The  easement,  however,  is 
usually  regarded  as  perpetual,  and  as  such  forms  the  basis  of 
compensation ;  but  should  the  use  be  abandoned,  the  land,  dis- 
encumbered of  the  easement  imposed  by  the  appropriation,  will 
revert  to  the  holder  of  the  fee.  It  is  a  cardinal  rule  that  every 
statute  in  derogation  of  the  right  of  property,  or  that  takes 
away  the  estate  of  a  citizen,  is  to  be  construed  strictly,84  and 
no  implication  can  be  indulged  in  that  a  greater  interest  or 
estate  is  taken  than  is  absolutely  necessary  to  satisfy  the  lan- 
guage and  object  of  the  statute  making  the  appropriation.85 

But  a  fee  may  be  taken  as  well  as  a  lesser  right  or  interest. 
It  is  not  necessary  that  exact  or  technical  language  should  be 

80  Talbot  V.  Hudson,  82  Mass.  201;  Hatch  V.  R.  R.  Co.,  18  Ohio 
417;  In  Re  Gas  Co.,  63  Barb.  437.  St.  92;  Craig  v.  R.  R.  Co.,  39  N.  Y. 

81  Eidemiller  v.   Wyandotte   City,       404. 

2   Dill.    376;    Cameron    v.    Supervi-  83  Morris    V.    Turnpike    Road,    6 

sors,  47  Miss.  264;  Paris  V.  Mason,  Bush   (Ky.),  671;  R.  R.  Co.  v.  Bur- 

37   Tex.   447;    Cook   V.   South   Park  kett,    42    Ala.    83;    Cooley's    Const. 

Commissioners,    61    111.    115.     This,  Lim.  559. 

however,  is  a  constitutional  limita-  84  Sharp  V.  Spear,  4  Hill.  76. 

tion    of    the    right.     United    States  85  Cemetery  V.   R.   R.   Co.,   68  N. 

v.  Jones,   109  U.  S.  513.  Y.  591. 

82  State  v.  Laverack,  34  N.  J.  L. 


64  ABSTRACTS    CWF    TITLE, 

used  ill  a  statute,  for  taking  private  property  for  public  use, 
in  order  to  vest  the  fee  in  the  public,  but  it  must  clearly  appear 
that  it  was  the  intention  of  the  Legislature,  as  disclosed  by  the 
act  itself,  to  take  a  fee.  If  any  remaining  private  ownership 
is  inconsistent  with  the  use  for  which  the  land  is  taken,  and 
compensation  is  made  for  the  fee,  which  is  also  necessary  for 
the  full  use  of  the  property  under  the  act,  a  fee  will  be  deemed 
to  have  been  taken  in  the  absence  of  express  words.86  In  some 
of  the  States  the  fee  passes  as  an  incident,87  and  excludes  any 
remaining  rights  in  the  former  owner,  but  usually  the  extent 
of  interest,  or  quantity  and  duration  of  the  estate  acquired 
by  the  exercise  of  this  power,  is  derived  from  the  specific  act 
of  appropriation. 

The  power  is  a  legislative  one,  subject  to  constitutional  re- 
strictions, and  the  only  conditions  requisite  to  its  exercise  are 
the  needs  of  the  public  and  conrpensation  to  the  owner;  when 
these  conditions  exist,  the  right  of  the  State  to  withdraw  prop- 
erty from  private  control  and  subject  to  public  use  whatever 
interest  or  estate  is  necessary  to  accomplish  the  intended  pur- 
pose, is  complete  and  perfect,88  and  this  interest,  according 
as  the  Legislature  may  determine,  may  consist  of  an  estate  for 
years,  for  life,  a  mere  easement,  a  conditional  fee,  or  a  fee  sim- 
ple absolute.89  It  would  therefore  appear  that  the  act  of  ap- 
propriation, whenever  the  title  has  passed  by  the  exercise  of 
this  power,  together  with  such  of  the  condemnatory  proceed- 
ings as  may  be  necessary  to  show  the  extent  of  land  taken,  are 
necessary  links  in  the  chain  of  title,  and  should  be  duly  set 
forth  in  the  abstract. 

§  55.  Escheat.  In  its  original  acceptation,  csclieai  was 
the  right  of  the  lord  of  the  fee  to  enter  same  when  it  became 
vacant  by  extinction  of  the  blood  of  the  tenant.  It  was  one 
of  the  incidents  of  feudal  tenure,  and  is  still  occasionally  men- 

86  Park  Commissioners  v.  Arm-  544;  Haldeman  v.  R.  R.  Co.,  50  Pa. 
strong,  45  N.  Y.  234.  St.  425;  Giesy  v.  R.  R.  Co.,  4  Ohio 

87  Troy  v.  R.  R.  Co.,  42  Vt.  265;       St.  308. 

Challis  v.  R.  R.  Co.,  16  Kan.  117.  89  Hey  ward  v.  New  York,  3  Seld. 

ss  Dingley   V.    Boston,    100   Mass.       314;  Cooley's  Const.  Lim.  §  558. 


TITLE   BY   PURCHASE.  65 

tioned  as  marking  the  feudal  origin  of  American  land  titles. 
Nothing  but  the  name,  however,  is  feudal,  and  is  only  another 
instance  in  which,  in  our  land  system,  a  word  is  applied  in  a 
sense  far  different  from  its  original  meaning,  suggesting  ideas 
which  have  long  been  exploded. 

Escheat,  in  the  United  States,  depends  upon  positive  statutes. 
It  does  not  follow  as  a  matter  of  right,  but  of  expediency.  The 
lord  of  the  fee,  holding  the  ultimate  title,  might  with  propriety 
assert  his  ownership,  but  no  such  right  can  be  claimed  by  the 
State,  nor  is  the  idea  compatible  with  the  full  property  in 
land  held  under  an  allodial  title.  It  is,  however,  a  universal 
rule  of  civilized  society  that  when  the  deceased  owner  has  left 
no  heirs,  his  property  should  vest  in  the  public  and  be  at  the 
disposal  of  the  Government,90  and  by  the  general  rule  of  the 
common  law,  all  real  property  capable  of  use  and  possession, 
and  having  no  other  acknowledged  owner,  i*  in  theory  vested 
in  the  king  as  the  head  and  sovereign  representative  of  the 
Nation ;  so  the  State,  in  its  right  of  sovereignty,  is  said  to 
possess  the  ultimate  property  of  all  lands  within  its  jurisdic- 
tion. When  the  owner  dies  intestate  and  leaving  no  inherita- 
ble blood,  the  lands  vest  immediately  in  the  State  by  operation 
of  law;91  but  some  proceeding  is  necessary  on  the  part  of 
State  to  assert  the  title  thus  acquired,  which  is  accomplished 
by  a  procedure  sometimes  termed  "  inquest  of  office,"  the  va- 
rious steps  being  prescribed  by  statute,  and  culminating  in  a 
decree.92  This  decree,  together  with  the  preliminary  proceed- 
ings, forms  the  record  evidence  of  title  derived  in  this  manner. 
The  State  on  taking  lands  by  escheat,  takes  the  same  title  as 
the  person  last  seized,  and  none  other,  subject  to  the  same 
trusts,  incumbrances,  charges  and  services  to  which  the  property 
would  have  been  subject  had  it  descended  to  heirs,93  the  State 

90  Bou.   Law   Diet.    537 ;    4   Kent  92  An  escheat  may  be  asserted  by 
Com.  *425.                                                      an  action  of  ejectment  in  the  usual 

91  People  v.  Conklin,  2  Hill.  67;       form. 

Sands  v.  Lynham,  27   Gratt.    (Va.)  93  Trust   Co.   V.   People,   1    Sandf. 

291.  Ch.  139. 

6 


QQ  ABSTRACTS    OF   TITLE. 

being  for  this  purpose  a  statutory  heir  in  default  of  known 
kindred.94 

§  56.  Confiscation.  Closely  allied  to  escheat,  but  resting' 
on  a  different  foundation,  is  confiscation,  being  the  right  to 
appropriate  to  the  use  of  the  State,  the  property  of  alien  ene- 
mies during  war.  Respecting  this  power  of  the  Government, 
no  doubt  can  be  entertained.  That  war  gives  to  the  sovereign 
full  right  to  take  the  persons  and  property  of  the  enemy  where- 
ever  found  is  conceded.  The  mitigation  of  this  rigid  rule, 
which  the  humane  and  wise  policy  of  modern  times  has  intro- 
duced into  practice,  will  more  or  less  affect  the  exercise  of  this 
right,  but  can  not  impair  the  right  itself.95  Save  in  a  few 
instances,  during  the  revolutionary  period,  this  right  has  been 
restricted  to  seizure  of  personal  property  until  the  late  civil 
war,  when  by  act  of  Congress  of  July  17,  1862,  the  right  of 
confiscation  of  real  estate  was  again  asserted.  But  concur- 
rently with  the  passage  of  this  act,  Congress  also  adopted  a 
joint  resolution  explanatory  of  it,  whereby  it  was  resolved 
that  no  punishment  or  proceedings  under  the  act  should  be 
construed  so  as  to  work  a  forfeiture  of  the  real  estate  of  the 
offender  beyond  his  natural  life,  and  courts  when  passing  upon 
the  question  have  uniformly  decided  that  confiscation  proceed- 
ings in  effect,  reach  only  the  life  estate  of  the  owner.96  The 
condemnation  goes  to  the  whole  estate,  however,  and  extin- 
guishes all  the  rights  possessed  by  the  original  owner,  leaving 
in  him  no  estate  or  interest  of  any  description  which  he  can 
convey  by  deed,  and  no  power  which  he  can  exercise  in  favor 
of  another.  The  forfeiture  is  complete  as  long  as  it  lasts,  and 
the  proviso,  by  way  of  grace,  gives  back  the  land  to  his  heirs 
upon  his  death.97 

94  Wallace  v.  Harmsted,  44  Penn.  97  Wallach  v.  VanRiswiek,  2  Otto 
St.  492.  (U.   S.),   202;   French  v.  Wade,   12 

95  Brown  v.  United  States,  8  Otto  (U.  S.),  132;  Pike  v.  Wassell, 
Craneh   (U.  S.),  110.  94   U.   S.    711.     In   England  attain- 

96  Biglow  v.  Forrest,  9  Wall.  der  of  treason  worked  corruption  of 
(U.  S. )  339;  Dewey  V.  McLain,  7  blood  and  perpetual  forfeiture  of 
Kan.  126:  Day  v.  Micon,  18  Wall.  the  estate  of  the  person  attained  to 
(U.  S.)   156.  the  disinherison  of  his  heirs.    When 


TITLE    BY   PURCHASE.  '67 

§  57.  Forfeiture.  The  term  forfeiture  is  used,  as  be- 
tween individuals,  to  denote  the  method  by  which  an  interest 
or  estate  in  lands  reverts  to  a  former  owner  by  operation  of 
law,  as  by  a  breach  of  condition  in  a  deed  or  lease.  Forfeitures 
are  not  favored  in  law,  and  courts  eagerly  seize  hold  of  any 
circumstances  by  which  they  may  be  defeated,  and  where  ade- 
quate compensation  can  be  made,  the  law  in  many  cases,  and 
equity  in  all  cases,  discharges  the  forfeiture  upon  such  com- 
pensation being  made.98 

In  its  more  common  acceptation  it  is  the  means  by  which 
the  property  of  the  citizen  inures  to  the  benefit  of  the  State 
through  the  violation  of  law,  and  in  the  United  States  occurs 
only  in  case  of  confiscation  or  seizure  for  taxes.  In  either 
case  it  is  in  the  nature  of  a  penalty,  and  results  as  a  necessary 
incident  from  our  reciprocal  duties  and  obligations.  As  a 
method  of  acquiring  title  it  is  viewed  with  disfavor  and  is  of 
doubtful  effect.  It  is  attended  with  greater  formalities  than 
any  other  form  of  purchase,  and  the  title  derived  through  it 
is  liable  to  be  defeated  by  a  vast  number  of  contingencies. 
Ordinarily,  titles  resting  solely  on  rights  derived  through  for- 
feiture, for  non-payment  of  taxes  or  otherwise,  are  to  be  viewed 
with  suspicion  and  accepted  with  caution,  experience  having 
demonstrated  in  many  cases  their  unsubstantial  nature. 

the      Federal       Constitution      was  work  corruption  of  blood  or  forfei- 

formed,  this  was  felt  to  be  a  great  ture  of  estate,  except  during  the  life 

hardship,   and   even   rank   injustice.  of  the  person  attained. 

For  this  reason  it  was  ordained  that  98  Life  Ins.  Co.  V.  Norton,  6  Otto 

no     attainder     of     treason     should  (U.  S.)  234. 


59. 

Depositories   of  records. 

68. 

GO. 

The    right    of    inspection    of 

69. 

records. 

70. 

61. 

Doctrine  of  notice. 

62. 

Constructive  notice. 

71. 

63. 

Actual  notice. 

72. 

64. 

Eegistration. 

73. 

65. 

Effect  of  recording  acts. 

66. 

Loss    or   destruction   of   rec- 
ords. 

CHAPTER  V. 

SOURCES    OF   INFORMATION. 

§  58.     Kecords.  §  67.     Official  aids  to  search. 

Grantor  and  grantee  indexes. 
Notice  lis  pendens. 
Plaintiff    and    defendant    in- 
dexes. 
Tax  records. 
Official  certificates. 
Church    and   parish   records. 


§  58.  Records.  An  abstract  of  title,  as  compiled  in  the 
United  States,  is  an  abridgment  of  the  public  records,  to  which 
it  also  bears  the  relation  of  a  special  index,  they  being  the  great 
repositories  of  title,  and  the  source  from  whence  the  examiner 
draws  the  greater  part  of  his  information. 

A  record,  it  has  been  said,  is  a  written  memorial  made  by  a 
public  officer,  authorized  by  law  to  perform  that  function,  and 
intended  to  serve  as  evidence  of  something  written,  said,  or 
done.1  The  acts  of  Congress  and  of  the  State  Legislatures  are 
the  highest  types  of  records,  while  the  proceedings  and  deter- 
minations of  the  courts  are  scarcely  less  in  dignity,  and  by 
statutory  enactment  the  enrollment  of  deeds,  though  made  pri- 
marily to  perpetuate  the  memory  of  the  facts  which  they  re- 
cite, is  given  the  operation  and  effect  of  records.  These  records 
are  of  controlling  efficacy  in  the  State  where  made,  and  by  the 
Constitution  of  the  United  States  it  is  declared  that  "  full 
faith  and  credit  shall  be  given  in  each  State  to  the  public  acts, 
records,  and  judicial  proceedings  of  every  other  State."  In 
matters  of  sales  and  conveyances  of  land,  records  acquire  a 

l  2  Bou.  Law  Diet.  424. 

68 


SOURCES    OF    INFORMATION.  69 

new  importance  from  the  peculiar  American  doctrine  of  con- 
structive notice,  which  casts  a  knowledge  of  their  contents  and 
import  upon  subsequent  purchasers,  and  forms  one  of  the 
chief  incentives  to  the  production  of  abstracts. 

§  59.  Depositories  of  Records.  Under  the  general  name 
of  records  are  classed  all  official  acts  of  the  public  officers  in 
relation  to  title ;  the  adjudications  and  determinations  of  the 
courts ;  ministerial  acts  of  officers  in  furtherance  of  the  taxing 
power,  and  incidentally  all  papers,  whether  filed  or  engrossed, 
which  affect  title  by  relation  and  through  the  operation  of  law. 
Popularly  the  term  is  applied  to  the  registry  of  deeds  rather 
than  to  the  other  classes  mentioned ;  but  all  come  within  its 
signification,  so  far,  at  least,  as  the  purpose  of  abstract  making 
is  concerned,  and  from  all  of  these  varied  sources  the  examiner 
draws  the  details  which  go  to  make  up  a  full  exposition  of  the 
title.  The  registry  of  deeds  furnishes  the  most  fruitful  field, 
and  the  great  bulk  of  the  examination  is  compiled  therefrom, 
but  recourse  must  also  be  had  to  the  government  archives,  the 
transactions  of  the  State  Legislature,  the  files  of  all  the  courts, 
State  and  Federal,  ordinances  of  the  municipality,  and  acts 
of  the  officers  exercising  the  ministerial  duties  of  taxation. 
Though  easily  enumerated,  these  sources  cover  a  wide  field, 
and  one  which  requires  no  ordinary  ability  to  fully  encompass. 

§  60.  The  Right  of  Inspection  of  Records.  The  right 
to  inspect  and  copy  or  abstract  the  public  records  is  undoubted 
to  those  who  have  a  direct  interest  therein.2  !Not  only  does 
such  a  right  result  from  the  plain  intendment  of  the  recording 
acts  with  reference  to  the  matter  of  notice,  but  it  has  also  been 
assured,  in  a  majority  of  the  States,  by  statutory  enactments 
providing  for  the  "  free  examination  "  of  such  records  by  all 
persons  having  occasion  to  inspect  them  for  any  lawful  pur- 
pose. But  until  very  recent  years  the  question  has  usually 
arisen  only  where  the  right  claimed  was  to  inspect  or  obtain  a 
copy  of  some  particular  document,  or  of  documents  relating  to 
a  given  transaction  of  title.     With  respect  to  the  right  of  the 

2  Brewer  v.  Watson,  61  Ala  310;  Lum  v.  McCarty,  39  N.  J.  L.  287; 
People  v.   Richards,   99  N.   Y.   620;       Boylan  v.  Warren,  39  Kan.  301. 


TO  ABSTRACTS   Ot   TITLE. 

abstract  maker  to  copy  or  abstract  the  entire  records  of  a 
county  for  speculative  purposes,  the  question  may  be  considered 
of  such  modern  origin  as  not  to  have  been  contemplated  or  cov- 
ered by  the  common  law  authorities  relating  to  the  inspection 
of  records ;  3  and,  while  it  has  been  raised  to  some  extent  by  re- 
cent decisions,  it  has  not  yet  become  shaped  into  any  general 
definite  rule  or  policy  of  law. 

It  must  be  remembered  that  the  abstract  maker  does  not 
ask  for  an  inspection  of  a  record  and  abstract  thereof,  relat- 
ing to  lands  in  which  he  claims  to  have  title  or  interest,  or 
concerning  which  he  desires  information  in  contemplation  of 
acquiring  some  right  or  interest,  either  by  purchase  or  other- 
wise, and,  except  when  pursuing  some  special  examination,  he 
is  not  the  agent  or  attorney  of  parties  seeking  information 
because  interested  or  likely  to  become  so.  On  the  contrary, 
the  right  is  based  upon  neither  a  present  nor  prospective  in- 
terest in  lands,  either  personally  or  as  a  representative  of 
others  who  have,  but  is  for  his  own  future  gain  in  furnishing 
information  therefrom  to  third  parties  for  a  consideration. 
In  view  of  these  facts  the  volume  of  authority  seems  to  lean 
toward  a  denial  of  any  right  in  the  abstract  maker  to  demand 
the  inspection  and  free  use  of  public  records,  holding  that 
the  statutes  permitting  free  inspection  were  not  designed  to 
allow  individuals  the  privilege  of  copying  or  abstracting  the 
entire  records  of  a  public  office  in  which  they  have  no  direct 
or  special  interest,  or  of  using  them  continuously  for  the  pur- 
pose of  obtaining  information  to  be  used  for  speculation  and 
gain  in  their  private  business.4 

3  In  England,  the  occasions  which  In  Buck  v.  Collins,  51  Ga.  391.  it 
generally  have  required  the  exer-  was  said,  that  the  right  to  make 
eise  of  the  power  of  the  court  to  abstracts  is  a  perversion  of  the  pur- 
enforce  inspection  of  public  docu-  pose  for  which  the  books  are  kept, 
ments  have  been  those  where  a  and  in  Randolph  v.  State,  82  Ala. 
party  has  sought  evidence  for  the  527,  the  court  says,  that  the  right 
prosecution  or  defense  of  his  rights  of  free  examination  is  the  rule,  aud 
in  pending  litigation.  the      inhibition     of     the     privilege 

4  Bean  V.  People2  7  Colo.  200;  when  the  purpose  is  speculative,  is 
Cormack  v.  Wolcott,  37  Kan.  391 ;  the  exception.  So  in  Brewer  V. 
Boylan    r.    Warren,    39    Kan.    301.  Watson,    71    Ala.    299,    it    is    said: 


SOURCES    OP   INFORMATION.  Yl 

It  is  difficult,  however,  to  reconcile  the  reasoning  in  some  of 
the  cases  with  the  spirit  and  general  policy  of  the  law,  or  with 
the  just  claims  of  business  convenience.  The  great  utility  of 
the  professional  examiner  is  a  recognized  fact,  and  with  the 
constantly  increasing  complication  of  land  titles  his  assistance 
in  their  proper  adjustment  has,  in  many  localities,  become 
an  absolute  necessity.  The  position  which  he  occupies  in  the 
world  of  commerce  is  second  to  none  in  importance  and  re- 
sponsibility, and  the  free  and  unhindered  inspection  of  the 
records  should  be  accorded  him  as  a  matter  of  public  policy 
and  in  furtherance  of  great  public  interests,  if  not  as  a  matter 
of  legal  right. 

HSTot  the  least  among  the  reasons  assigned  in  the  foregoing 
class  of  cases  is  solicitude  for  the  preservation  of  the  sources 
of  information.  The  public  records,  it  is  said,  are  the  repos- 
itories of  the  rights  of  persons  and  of  property,  and  in  many 
cases  hold  the  only  evidence  of  either,  and  the  law  imposes 
upon  courts  and  ministerial  officers  the  duty  of  their  secure 

"  It  is  not  the  unqualified  right  of  equally  emphatic  terms.  Thus,  The 
every  citizen  to  demand  access  to.  Prince  George's  County  Abstract 
and  inspection  of  the  books  or  docu-  Company  was  incorporated  by  an 
ments  of  a  public  office,  though  act  of  the  legislature  of  Maryland, 
they  are  the  property  of  the  public  which  provided  "  that  said  corpora- 
and  preserved  for  public  uses  and  tion  may  make  and  may  procure 
purposes.  The  right  is  subject  to  copies  and  abstracts  from  the  public 
the  same  limitation  and  restriction  records  of  the  State  and  gather  in- 
as  the  right  to  an  inspection  of  the  formation  therefrom,  and  from 
books  of  a  corporation  which  other  sources  relating  to  convey- 
strangers  can  not  claim,  and  which  ance  of  property,  real  and  lease- 
is  only  allowed  to  the  corporators,  hold,  make  indexes  of  all  deeds, 
when  a  necessity  for  it  is  shown,  mortgages,  judgments,  decrees  and 
and  the  purpose  does  not  appear  to  other  records  within  the  State  of 
be  improper;  *  *  *  and  the  Maryland  and  may  examine  and 
individual  who  claims  access  to  guarantee  titles  to  property,  real 
public  records  and  documents  can  and  personal."  Under  this  liberal 
properly  be  required  to  show  that  legislation  the  Supreme  Court  of 
he  has  an  interest  in  the  document  Maryland,  in  Belt  v.  Abstract  Co., 
which  is  sought,  and  that  the  in-  73  Md.  289,  declared  that  said  com- 
epection  is  for  a  legitimate  pur-  pany  had  not  the  right  to  make 
pose.  searches  and  abstracts  of  title  for 
In  other  States  the  same  general  their  business  without  payment  to 
doctrine    has    been    announced     in  the  clerk  of  his  statutory  fees. 


72  ABSTRACTS    OF    TITLE. 

and  careful  protection  and  preservation ;  a  protection  and  pres-. 
en- at  ion  which  might  be  greatly  jeopardized  if  every  citizen 
at  his  will  and  pleasure  should  be  permitted  to  inspect,  examine 
and  copy  them  in  his  own  way.5  It  must  be  admitted  that  the 
argument  is  weak  when  applied  to  any  particular  class  as 
contradistinguished  from  the  general  public,  and  fanciful  when 
applied  to  actual  facts  as  they  are  presented  in  every  county 
in  the  country.  Mutilations  of  records  are  rare,  and  when 
instances  of  this  kind  do  occur,  it  will  almost  invariably  be 
found  that  the  mutilation  has  been  accomplished  by  some  person 
h  a ving  a  special  interest  therein  —  in  other  words,  by  one 
whom  the  law  says  may  inspect  them.  It  is  a  significant  fact 
that  the  case  in  which  this  theory  was  first  advanced,6  and 
which  has  served  as  the  keynote  for  every  subsequent  decision 
of  similar  import,  has  since  been  overruled  in  the  court  where 
it  was  pronounced.7  As  a  matter  of  fact,  no  class  of  the  com- 
munity are  more  directly  interested  in  the  preservation  and 
integrity  of  the  records  than  the  compilers  of  abstracts,  and  on 
more  than  one  occasion  their  indices  and  references  have  been 
brought  into  requisition  to  protect  public  interests  and  prevent 
confusion  of  titles.8 

A  more  liberal  view  has  been  taken  of  this  matter  in  some 
States  and  the  rule  has  been  announced  that,  as  the  records 
are  public,  every  person  has  the  right  to  inspect,  examine  and 
copy  them,  at  all  reasonable  times  and  in  a  proper  way;  that 
ministerial  officers  charged  with  the  custody  of  books  and  rec- 
ords can  not  deny  access  to  their  offices  or  the  books  therein 

5  Webber    v.    Townley,    43    Mieh.  6  Webber    v.    Townley,    43    Mich. 

534;    Bean  V.  People,   7   Colo.   200;  534. 

Cormaek  v.  Woleott,  37  Kan.   391;  7  Burton  V.  Tuite,  78  Mich.  363; 

Buck  v.  Collins,  51  Ga.  391;   In  Re  29  Am.  L.  Reg.  60. 

McLean,    8    Reporter    813.     In    the  8  A   notable   example    is    afforded 

latter    case    the    judges     afterward  by    the    great    fire    in    Chicago,    in 

granted,    as   an   act   of  grace,   what  1871.     This     conflagration     entirely 

they  denied  the  petitioner  to  be  en-  destroyed    the    public    records,    and 

titled  to  as  a  matter  of  right.     See,  the  ante-fire  indices  of  the  local  ab- 

also,  Re  Caswell's  Request,  18  R.  I.  stract  makers  now  furnish  the  only 

835.  connected   history  of   land   titles  in 

the  county  prior  to  that  event. 


SOURCES    OF    INFORMATION.  Id 

contained  to  any  person  coming  there  at  a  proper  time  and  in 
an  orderly  manner,9  and  that  any  person  so  desiring  has  a 
right  to  examine  such  books  and  records  without  charge,  not 
as  a  privilege  or  favor,  but  as  a  matter  of  right.10  Such  officers 
should  have  the  right  to  make  reasonable  restrictions  as  to  the 
manner  in  which  the  books  shall  be  examined,  and  to  exercise 
a  discretion  as  to  the  matter  of  the  admission  of  persons  to 
examine  and  copy  when  their  presence,  by  reason  of  numbers, 
would  interfere  with  the  performance  of  official  duties  or  the 
convenience  of  the  general  public,11  but  this  should  be  the 
extent  of  their  powers  of  discrimination  or  refusal. 

In  some  of  the  cases  in  which  the  right  of  free  inspection, 
and  privilege  of  copying  has  been  declared,  the  privilege  has 
been  restricted  to  such  persons  as  are  employed  to  examine  or 
guarantee  a  particular  title,  and  while,  as  to  such  persons,  the 
right  is  freely  conceded  it  is  denied  to  others.12 

With  respect  to  the  public  records  of  the  United  States  the 
necessity  of  interest,  as  at  common  law,  has  been  done  away 
with  by  statute,13  and  any  person  may  examine  them  or 
take  memoranda  therefrom,14  while  the  courts  of  some  States 
have  made  a  distinction  between  court  records  and  county 
records,  holding  that  the  judicial  records  of  the  State  should 
always  be  accessible  to  the  people  for  all  proper  purposes,  un- 
der reasonable  restrictions  as  to  the  time  and  manner  of  ex- 
amining them.15  In  the  absence  of  any  statute  regulating  the 
matter,  there  can  be  no  doubt  as  to  the  power  of  a  court  to 
prevent  an  improper  use  of  its  records,  and  hence  it  may  deny 
a  request  to  examine  same  from  motives  of  mere  curiosity,  or 
to  gratify  spite,  or  for  the  purpose  of  creating  public  scan- 

9  People  v.  Richards..  99  N.  Y.  11  People  V.  Richards,  99  X.  Y. 
620;  State  V.  Rachac,  37  Minn.  372;       620. 

Burton  v.  Tuite,  78  Mich.  363.  1 2  Barber  r.  Guaranty  Co.,  53  N. 

10  Lum  v.   McCarty,   39  X.   J.   L.       J.   Eq.   158. 

287;   Townshend   v.   Reg.   of   X.   Y.,  13  9  U.  S.  Stat.  292. 

7  How.  Prao.    (X.  Y.)    318;  Burton  14  Re  Chambers,  44  Fed.  Rep.  786. 

V.  Tuite,   78  Mich.   363;   Hansen   v.  15  Re  Caswell's  request,   18   R.   I. 

Eichstaedt,  69  Wis.  538;  Xewton  V.  835. 

Fisher,  98  X.  C.  20;  and  see  State 

V.  Rachac,  37  Minn.  372. 


74  ABSTRACTS    OF    TITLE. 

dais;16  but  when  the  object  is  legitimate  and  serves  a  proper 
purpose,  there  is  no  good  reason  for  denying  the  right  of  in- 
spection, and  this  is  particularly  true  after  the  final  hearing 
or  determination  of  a  cause.17 

§  61.  Doctrine  of  Notice.  The  principle  is  well  estab- 
lished, that  a  purchaser  of  land  is  chargeable  with  notice, 
by  implication,  of  every  fact  affecting  the  title,  which  could 
be  discovered  by  an  examination  of  the  deeds  or  other  mu- 
niments of  title  of  his  vendor,  and  of  every  fact,  as  to  which 
the  purchaser,  with  reasonable  prudence  or  diligence,  ought 
to  become  acquainted.  If  there  is  sufficient  contained  in  any 
deed  or  record,  which  a  prudent  purchaser  ought  to  examine, 
to  induce  an  inquiry  in  the  mind  of  an  intelligent  person,  he 
is  chargeable  with  the  knowledge  or  notice  of  the  facts  so 
contained,  and  generally,  a  party  in  possession  of  certain  in- 
formation will  be  chargeable  with  a  knowledge  of  all  facts 
which  an  inquiry  suggested  by  such  information,  diligently 
prosecuted,  would  have  disclosed  to  him.18  The  purchaser 
must  be  presumed  to  investigate  the  title,  and  to  examine  every 
deed  or  instrument  forming  a  part  of  it,  especially  if  recorded,19 
and  to  make  inquiries  in  pais  as  well  as  look  at  records.20 

Notice  is  classified  as  either  actual  or  consh^uctive ;  but  there 
is  no  difference  between  them  in  regard  to  the  legal  consequence 
or  effect.21 

§  62.  Constructive  Notice.  It  is  scarcely  possible  to  de- 
clare a  priori  what  shall  be  deemed  constructive  notice,  be- 
cause unquestionably  that  which  may  not  affect  one  man  may 
be  abundantly  sufficient  to  affect  another,  and  Sugden  ob- 
serves, "  that  every  one  who  has  attempted  to  define  what  it 

16  Schmedding  v.   May,   85   Mich.  Chicago    &    R.    R.    V.    Kennedy,    70 

1;    Cowley    v.    Pulsifer,    137    Mass.  111.  350. 

392.  20  Littleton   v.   Giddings,   47   Tex. 

n  See  cases  last  cited.  109. 

18  Cambridge  Bank  v.  Delano,  48  21  Hill  v.  Epley,  31  Pa.  St.  335; 
N.  Y.  326;  Wilson  V.  Hunter,  30  Morrison  v.  Kelly,  22  111.  610;  Elli- 
Ind.  466.  son  v.  Wilson,  36  Vt.  67. 

1 9  Acer  v.  Wescott,  46  N.  Y.  384 ; 


SOURCES   OF   INFORMATION.  75 

is,  has  declared  his  inability  to  satisfy  even  himself."  22  The 
accepted  legal  definition  is,  that  constructive  notice  is  a  legal 
inference  from  established  facts.23  Where  a  party  has  actual 
notice  of  anything  by  which  the  title  to  property  is  affected,  or 
has  the  means  of  knowing  the  same,  he  is  charged  with  con- 
structive notice  of  facts  and  instruments  to  a  knowledge  of 
which  he  would  have  been  led  by  inquiry,  and  which 
would  have  revealed  the  true  state  of  the  title.24  Such 
would  also  be  the  case  when  a  party  has  designedly  abstained 
from  inquiry  for  the  very  purpose  of  avoiding  notice;  for  the 
policy  of  law,  and  the  safety  of  the  public,  forbids  a  person  to 
deny  knowledge,  while  he  is  so  dealing  as  to  keep  himself  ig- 
norant, and  if  he  omit  to  make  examination  and  inquiry  in 
a  proper  case  he  is  conclusively  charged  with  negligence,  and 
with  notice  of  the  defects  in  the  title.25 

In  this  country  it  has  been  uniformly  held  that  the  record 
of  a  conveyance,  executed  in  conformity  to  law,  operates  as 
constructive  notice  to  all  subsequent  rnirchasers  or  incum- 
brancers, claiming  under  the  same  grantor,  of  any  estate,  either 
legal  or  equitable,  in  the  same  property,  provided  the  convey- 
ance be  one  which  the  law  requires  or  authorizes  to  be  re- 
corded ; 26  and  such  purchaser  is  charged  with  the  duty  of  ex- 
ercising diligence  in  making  proper  examination  touching  the 
rights  and  equities  of  others,  where  the  record  shows  that 
others  have  such  rights,  in  the  lands  he  is  about  to  purchase.27 

A  subsequent  purchaser  is  not  chargeable  with  constructive 
notice  of  all  instruments  of  record,  by  whomsoever  made, 
but  only  of  such  as  lie  in  the  apparent  chain  of  title,  or 
have  been  made  by  one  in  some  way  connected  with  the 
property    involved   in   interest,    and    brought   to   his   notice.28 

22  2  Sugden  on  Vendors,  570  Mass.  248;  and  see,  1  Warvelle  on 
(Am.  Ed.).  Vendors,  316,  and  cases  cited. 

23  Birdsall  v.  Russell,  29  N.  Y.  2G  1  Story  Eq.  Jur.  §  403 ;  Tilton 
220.  v.   Hunter,  29   Maine,  29;   Crockett 

24  Knap   v.    Bailey,    79   Me.    195;  r.  McGuire,  10  Mo.  34. 

Carter  v.  Hawkins,  62  Tex.  393.  27  Brush  v.  Ware,  15  Pet.   (U.  S.) 

25  Barnard  v.   Campau,   29   Mich.       110. 

162;     Cunningham    v.     Pattee,     99  28  Carbine  V.  Pringle,  90  111.  302. 


76  ABSTRACTS    OF   TITLE. 

Hence  lie  is  not  bound  to  look  for  conveyances  by  or  judgments 
against  one  in  whom  the  record  shows  no  title. 

The  doctrine  of  constructive  notice  under  registration  laws 
has  always  been  regarded  as  a  harsh  necessity,  and  the  statutes 
which  create  it  have  always  been  subjected  to  a  rigid  construc- 
tion.29 Therefore,  only  the  facts  as  they  appear  on  the  face 
of  the  record  are  deemed  binding  on  subsequent  purchasers, 
and  if,  from  any  cause,  the  real  facts  are  there  misstated,  as 
if  the  wrong  land  is  by  mistake  described,  or  the  sum  for  which 
a  mortgage  is  given  is  inadvertently  omitted,  a  subsequent  pur- 
chaser in  good  faith,  relying  upon  what  is  shown,  will  not  be 
affected  by  the  error  or  omission.30 

The  recording  acts,  for  the  purpose  of  information  and  con- 
structive notice,  have  not  altered  or  abolished  the  rules  of  equity 
in  relation  to  actual  or  constructive  notice  by  other  means  than 
the  recording  acts.31 

§  63.  Actual  Notice.  That  which  a  person  actually  sees; 
or  which  is  specifically  brought  to  his  attention,  creates  an  actual 
notice  of  the  fact.  But  the  general  doctrine  of  actual  notice 
is  much  broader  than  this.  Where  a  purchaser  has  knowledge 
of  any  fact  sufficient  to  put  a  prudent  man  upon  an  inquiry, 
which,  if  prosecuted  with  ordinary  diligence,  would  lead  to 
actual  notice  of  some  right  or  title  in  conflict  with  that  he  is 
about  to  purchase,  it  is  his  duty  to  make  the  inquiry,  and  if 
he  does  not  make  it,  he  is  guilty  of  bad  faith  or  negligence  to 
such  an  extent  that  the  law  will  presume  that  he  did  make  it, 
and  will  charge  him  with  the  actual  notice  he  would  have  re- 
ceived if  he  had  made  it.32 

Open,  notorious  and  exclusive  possession  of  land  imparts 
notice  of  the  title  of  the  person  in  possession,33  and  of  every 

29  Chamberlain  V.  Bell,  7  Cal.  292.  32  Cambridge  Bank  v.  Delano,  48 

30  Chamberlain    V.    Bell,     7    Cal.       N.  Y.  326. 

292;  Sanger  v.  Craigul,  10  Vt.  555;  33  Greer  v.  Higgins,  20  Kan.  420; 

Frost  v.  Beekman,  1  Johns.  Ch.   (N.  Meehan   v.   Williams,   48   Penn.    St. 

Y.)    288.  241;  Cabeen  v.  Breekenridge,  48  111. 

31  Bourland  V.  Peoria,  16  111.  588.  91;    Tuttle   V.    Churchman,   74    Ind. 

311;  Hawley  v.  Morse,  32  Mo.  287. 


SOURCES    OF    INFORMATION.  77 

fact  which  the  purchaser  might  learn  by  inquiry,34  but  this  rule 
does  not  apply  to  a  vendor  remaining  in  possession,  so  as  to  re- 
quire a  purchaser  from  his  grantee  to  inquire  whether  he  has 
reserved  any  interest  in  the  land  conveyed.  So  far  as  the  pur- 
chaser is  concerned,  the  vendor's  deed  is  conclusive  on  that  sub- 
ject.35 While  it  is  true,  that  the  law  regards  the  actual  occu- 
pancy of  land  as  equivalent  to  notice  of  the  claim  of  the  occu- 
pant, to  all  persons  dealing  with  the  title,  yet  this  is  not  an  ab- 
solute proposition,  which  is  to  be  taken  as  true  in  all  possible 
relations,  other  than  the  one  last  noticed.  The  known  circum- 
stances may  be  such  that  the  occupancy  will  not  suggest  to  a 
purchaser  an  inquiry  into  the  title  or  claim  of  the  occupant,  and 
when  the  inquiry  may  be  omitted  in  good  faith  and  in  the 
exercise  of  ordinary  prudence,  no  one  is  bound  to  make  it. 
Possession  out  of  the  vendor  and  actually  in  another  person 
ordinarily  suggests  an  inquiry  into  the  claim  of  the  latter, 
and  a  failure  to  make  such  inquiry  evinces  gross  neglect,  but 
the  question  in  such  cases  is  one  of  actual  notice,  and  such  no- 
tice will  be  imputed  only  where  it  is  a  reasonable  and  just 
inference  from  the  visible  facts.36 

As  distinguished  from  constructive  notice,  actual  notice  con- 
sists in  express  information  of  a  fact  brought  home  to  a  party, 
or  a  knowledge  of  circumstances  which  should  lead  him  to  a 
knowledge  of  such  fact.  Its  existence  is  always  a  question  of 
fact,  open  to  rebuttal  or  explanation,  while,  on  the  other  hand, 
constructive  notice  is  a  presumption  of  law  which  can  not  be 
rebutted.37 

§  64.  Registration.  The  system  of  registration  practiced 
in  the  United  States  is  unknown  to  the  common  law  and  is 
essentially  a  creation  of  the  statute.  It  is  doubtless  derived  from 
the  English  statute  of  enrollments,  which  was  enacted  to  coun- 

34  Tankard  v.  Tankard,  79  N.  C.  36  Pomeroy    v.    Stevens,    11    Met. 

54;    Pritehard   v.    Brown,   4   N.    H.  244;     Dooly    V.    Walcott,    4    Allen, 

397.  406;    Jackson   v.   Elston,    12   Johns. 

•■:•-.  Van   Keuren  v.   R.   R.   Co.,   38  425. 
N.  J.  L.  ]<;r>;  Tnttle  v.  Qhurchman,  37  Tufts  v.  King,  18  Pa.  St.  157; 

74      [nd.     311;      contra,     White     v.  Bradbury  v.  Falmouth,   18  Me.  65; 

White,  8!)   111.  460.  Birdsall  V.  Russell,  29  N.  Y.  220. 


^8  ABSTRACTS    OF    TITLE. 

teract  the  evil  effects  resulting  from  the  practice  of  secret  con- 
veyances under  the  statute  of  uses.  This  statute  provided  that 
every  bargain  and  sale  of  an  inheritance  or  freehold  should 
be  by  deed  indented  and  enrolled  within  six  lunar  months  from 
its  date,  either  in  one  of  the  courts  of  Westminster,  or  before 
the  justices  and  clerk  of  the  peace  in  the  county  where  the  lands 
were  situate.  The  enrolling  of  a  deed  did  not  make  it  a  record, 
however,  but  it  was  recorded  "  to  be  kept  in  memory."  3S 

By  the  American  system  of  registration,  deeds  of  conveyance 
of  any  estate  or  interest  in  land,  when  duly  recorded  in  con- 
formity with  the  law  of  the  State  where  such  land  is  situate, 
have  the  dignity  and  effect  of  records,  and  to  them  much  of 
the  stability  of  our  land  titles  is  attributable.  Such  record  not 
only  serves  as  a  means  of  preservation  of  the  muniments  and 
evidences  of  title,  but  also  has  the  effect  of  giving  to  the  transfer 
that  notoriety  formerly  obtained  by  livery  of  seizin,  to  which 
it  is  made  equivalent  in  some  of  the  States  by  statute.39  The 
statutes  of  registration  bear  a  close  similitude  in  all  the  States, 
and  provide  generally  for  the  recording  of  every  instrument 
in  writing,  by  which  any  estate  or  interest  in  land  is  created, 
aliened,  mortgaged  or  assigned,  or  by  which  the  title  to  land 
may  be  affected  either  in  law  or  equity. 

§  65.  Effect  of  Recording  Acts.  It  is  a  familiar  provi- 
sion of  the  recording  acts,  that  every  conveyance  which  shall 
not  be  recorded  as  provided  by  law,  shall  be  void  against  any 
subsequent  purchaser  in  good  faith,  and  for  a  valuable  consider- 
ation, of  the  same  land,  or  any  portion  thereof,  whose  deed  of 
conveyance  shall  be  first  duly  recorded ;  and  further,  that  every 
instrument  recorded  in  the  manner  prescribed  by  statute,  shall, 
from  the  time  of  filing  same  for  record,  impart  notice  to  all 
persons  of  the  contents  thereof.  It  would  seem,  however,  that 
the  constructive  notice  afforded  by  the  record  of  a  deed,  ap- 

38  Jacob's  Law  Diet.  457 ;  Tiffany  conveyance    by    lease    and    release, 

on    Registration.     It    will    be    per-  which  for  many  years  was  the  pop- 

ceived  that  only  one  class  of  deeds  ular    mode    of   conveyance    in    Eng- 

was    required    to    be    enrolled,    to-  land  and  which  required  no  enroll- 

wit:  bargain  and  sale  of  an  inherit-  ment  or  other  form  of  publicity, 
ance.     This   developed   the  form   of  39  Higbee  v.  Rice,  5  Mass.  344. 


SOURCES    OF    INFORMATION.  79 

plies  only  to  those  who  are  bound  to  search  for  it ;  as  subsequent 
purchasers,  and  all  others  who  deal  with  or  on  the  credit  of  the 
title,  in  the  line  of  which  the  recorded  deed  belongs.40  That 
such  record  imparts  notice,  is  to  be  understood  also,  in  the  sense 
that  the  contents  of  the  deed  are  correctly  spread  upon  the 
record,41  for  the  recording  acts  can  not  be  made  by  equitable 
construction  to  embrace  cases  not  within  them,  or  to  give  con- 
structive notice  of  things  the  records  do  not  show;  and  where 
a  mistake  is  made  in  recording,  a  subsequent  purchaser  has  a 
right,  in  the  absence  of  actual  notice  of  the  mistake,  to  rely 
on  the  records  as  showing  the  exact  facts.42  But  incorrect 
registration  can  not  avail  a  party  who  is  not  misled  thereby.43 
It  would  further  seem,  that  instruments  to  impart  notice, 
must  be  recorded  in  the  proper  books.  Thus,  where  separate 
books  are  provided  for  deeds  and  mortgages  it  has,  in  some  in- 
stances, been  held  that  a  mortgage  recorded  in  a  book  of  deeds 
will  not  furnish  constructive  notice.44  So  also,  the  registry 
of  an  instrument  not  required  by  law  to  be  recorded  is  notice 

40  Maul  V.  Rider,  59  Pa.  St.  167 ;  transcribed.  Indeed  to  attempt  to 
Corbin  V.  Sullivan,  47  Ind.  356;  prosecute  such  a  search  would  be 
Gillett   v.  Gaffney,  3  Col.  351.  idle     and     nugatory.     Grantees     do 

41  Terrell  v.  Andrew  County,  44  not  usually  leave  their  deeds  lying 
Mo.  309;  McLouth  r.  Hurt,  51  Tex.  in  the  Recorder's  office  for  the 
115.  inspection     of     the     public.      After 

42  Frost  v.  Beekman,  1  John.  Ch.  they  are  recorded  they  take  them 
288;  Barnard  V.  Campan,  29  Mich.  away  and  keep  them  in  their  own 
162;  Wait  V.  Smith,  92  111.  385;  possession.  In  a  large  majority  of 
compare  Riggs  V.  Boylan,  4  Biss.  cases,  it  would  not  only  entail  ex- 
445.  As  was  said  by  the  court  in  pense  and  trouble,  but  it  would  be 
Terrell  v.  Andrew  County,  44  Mo.  useless  to  attempt  to  get  access  to 
309 :     "  A   person    in   the   examina-  the  original  papers." 

tion  of  titles,  first  searches  the  rec-  This    is    a    vexed    question;    the 

ords,  and  if  he  finds  nothing  there  text  states  the  preponderating  view 

he  looks  to  see  if  any  instruments  but    in    several    States    a    contrary 

are  filed  and  not  recorded.     If  noth-  doctrine    is    held.     See    Mangold    v. 

ing  is  found,  and  he  has  no  actual  Barlow,    61    Miss.    593;     Mines    v. 

notice,  so  far  as  he  is  concerned  the  Mines,    35    Ala.    23;    Throckmorton 

land   is   unincumbered.     If  he   finds  v.    Price.    28    Tex.    605;    Clader    v. 

a  conveyance,   he   goes   no   further;  Thomas,  89  Pa.  St.  343. 

he   never    institutes    an    inquiry    to  43  Gaskill      v.      Badge,      3      Lea 

find   whether  the   deed   is   correctly  (Tenn.),   144. 

recorded    or    the    contents    literally  44  Cady  v.   Purser,   131   Cal.   552. 


80  ABSTEACTS    OF    TITLE. 

to  no  one,45  and,  in  the  absence  of  statutory  provisions  to  the 
contrary,  a  deed  is  not  constructive  notice,  because  copied 
into  the  registry,  if  it  has  not  been  duly  executed,  acknowledged 
or  proved,  so  as  to  entitle  it  to  registration,46  though  such  an 
instrument  is  effective  as  to  all  parties  who  have  actual  notice 
of  its  contents.47 

Registration  in  legal  intendment  is  conclusive  notice  to  the 
parties  to  be  affected  by  it.  But  notice  of  a  prior  unrecorded 
deed,  communicated  to  a  purchaser,  will  prevail  over  a  subse- 
quent recorded  deed,46  and  as  between  the  immediate  parties 
no  registration  is  necessary,  an  unrecorded  deed  having  the 
effect  to  carry  the  legal  title  as  against  all  persons  having  actual 
notice  of  its  existence.49  . 

It  will  often  happen  that  in  sparsely  populated  localities  a 
large  area  will  be  devoted  to  the  purposes  of  a  single  county. 
As  the  country  develops  and  population  increases  this  area  is 
divided  into  possibly  several  counties.  In  such  event,  unless 
there  has  been  a  provision  for  the  transfer  of  records,  it  may  be- 
come necessary  to  extend  searches  into  more  than  one  county,  or 
into  counties  other  than  that  in  which  the  land  in  question  is 
situate.  This  results  from  the  rule,  now  very  generally  ob- 
served, that  a  change  of  county  boundaries  does  not  impose  the 
duty  of  re-recording  deeds  where  lands  are  thrown  into  a  new 
or  different  county  from  the  one  of  which  they  originally  formed 
a  part,  and  where  an  instrument  has  once  been  properly  lodged 
for  record  in  the  county  where  the  land  is  then  situate,  it  will 
continue   to   impart   constructive  notice  to   all  persons   suhse- 

45  Galpin  V.  Abbott,  6  Mich.  17;  Where  upon  the  records  a  defect- 
Sigourney   V.    Larned,    10   Pick.    72.  ive  deed  is  found  and  is  seen,  this 

46  Loughridge  v.  Bowland,  52  must  be  regarded  as  actual  notice, 
Miss.  546;  Pringle  V.  Dunn,  37  Wis.  such  as  every  reasonable  and  hon- 
449;  Blood  v.  Blood,  23  Pick.  80;  est  man  would  feel  bound  to  act 
Bishop  v.  Schneider,  46  Mo.  472;  upon.  Hastings  v.  Cutler,  25  N. 
Parrett   V.    Shabhut,    5   Minn.    323;  H.    (4  Fost.)    483. 

Washburn    v.    Burnham,    63    N.    Y.  48  Claiborne  V.   Holmes,   51   Miss. 

132;   Jones  V.  Roberts,  65  Me.  273.  146. 

47  Bass  v.  Estill,  50  Miss.  300;  49  Musgrove  v.  Bonser,  5  Oreg. 
Musick    v.    Barney,    49    Mo.    458;  313. 

Musgrove   V.    Bonser,    5    Oreg.    313. 


SOURCES    OF    INFORMATION.  81 

quently  dealing  with  the  land  notwithstanding  such  land  has 
been  attached  to  another  county  and  no  record  of  the  convey- 
ance has  been  made  in  such  latter  county.50 

66.  Loss  or  Destruction  of  Records.  The  obligation 
of  giving  the  notice  required  by  law  rests  upon  the  party  hold- 
ing the  title,  and  if  his  duty  is  imperfectly  performed,  he,  and 
not  an  innocent  purchaser,  must  suffer  the  consequences ;  51  yet 
in  a  majority  of  the  States  that  duty  is  effectively  performed 
by  filing  the  deed  or  instrument  for  record,  and  when  this  has 
been  accomplished,  the  party  has  done  all  that  the  law  re- 
quires.52 Where  a  party  has  in  all  respects  complied  with  the 
law  the  total  or  partial  destruction  of  the  record  will  not,  it 
seems,  impair  any  rights  which  may  have  accrued  thereunder 
nor  affect  the  constructive  notice  afforded  by  the  filing  or  re- 
cording of  the  instruments,  which  still  remain  of  binding  force 
and  effect  upon  subsequent  purchasers.53  In  the  event  of  the 
destruction  of  the  record,  as  well  as  of  the  original  instrument, 
an  abstract,  shown  to  have  been  made  in  the  ordinary  course  of 
business,  and  delivered  to  the  parties  interested  in  the  land,  is, 
as  to  such  lost  instrument,  competent  evidence  of  the  facts 
therein  recited,  either  by  comity,  or,  in  some  States,  by  express 
enactment;54  but  where  such  abstract  is  unintelligible  without 
the  aid  of  some  proof  to  explain  the  meaning  of  abbreviations 
and  initial  letters  used  therein,  unless  some  stipulation  has  been 
made  which  determines  what  effect  shall  be  given  to  them, 
it  would  seem  that  the  abstract  is  insufficient  to  establish  title.55 
For  this  reason,  among  many  others  that  could  be  adduced, 
an  abstract  should  always  be  so  written  that  its  contents  may 
be  read  and  understood  by  anyone.  Abbreviations,  as  far  as 
possible,  should  be  avoided. 

CO  Geer   v.   Mining   Co.,    134    Mo.  53  Meyers  v.   Buchanan,  4G  Miss. 

85;    Koerper   v.   Ry.   Co.,   40  Minn.  397;    Gammon    v.    Hodges,    73    111. 

132.  140;    Steele   v.   Boone,   75   111.   457; 

51  Terrell   v.   Andrew  County,  44  Deming  v.  Miles,  35  Neb.  739. 

Mo.   300.  54  Russell  V.  Mandell,  73  111.  130. 

52  Riggs  v.   Boylan,  4   Biss.   445;  55  Weeks  v.  Dowing,  30  Mich.  4. 
Hook     v.     Fenner,     18     Colo.     283; 

Beebe  v.  Morrell,  7G  Mich.  114. 
6 


g2  ABSTRACTS    OF    TITLE. 

§  67.  Official  Aids  to  Search.  Xo  perfect  abstract  can 
be  compiled  without  the  assistance  of  a  carefully  prepared  tract 
index,  the  details  of  which  will  be  fully  considered  in  another 
place;  and  should  the  county  records  be  supplemented  with  this 
indispensable  adjunct,  the  searcher  will  have  less  difficulty 
and  experience  more  satisfactory  results.  Presuming,  how- 
ever, that  no  books  of  this  character  are  provided  by  the  public 
authorities,  recourse  must  be  had  to  such  doubtful  aids  as  by 
law  the  various  officers  are  required  to  keep.  These  consist 
ordinarily  of  a  series  of  alphabetically  arranged  indexes  with 
brief  descriptions  of  the  property.  Well  kept,  they  will  be  of 
much  assistance ;  if  otherwise,  they  will  prove  very  misleading. 
In  all  sales  of  real  estate,  where  no  better  methods  are  available, 
these  indexes  should  be  carefully  consulted  and  a  rough  chain 
obtained,  which,  by  reference  to  the  records,  can  be  amplified 
into  an  abstract. 

§  08.  Grantor  and  Grantee  Indexes.  The  grantor  and 
grantee  indexes  of  the  Registry  of  Deeds,  will  show  the  suc- 
cessive conveyances  and  incumbrances  under  the  names  of  the 
various  parties  who  at  different  times  have  held  the  title,  where 
there  has  been  no  break  in  the  chain,  together  with  the  volume 
and  page  of  the  record  on  which  the  instruments  may  be  found. 
Adverse  deeds,  unless  within  the  knowledge  of  the  examiner, 
can  rarely  be  found  by  this  method,  or  if  found  are  usually 
the  result  of  accident  rather  than  design.  If  only  an  index  to 
grantors  is  provided  it  will  be  almost  impossible  to  detect  ad- 
verse deeds.  Should  a  brief  description  of  the  property  be 
carried  out,  as  is  usually  the  case,  ending  with  the  section,  town 
and  range,  in  proper  columns,  these  columns  should  always  be 
carefully  run  down  for  any  conveyances  that  may  have  escaped 
the  searcher's  attention,  while  going  over  the  names. 

While  it  may  be  the  duty  of  the  recorder  to  keep  a  proper 
index  of  his  books  of  registration,  so  that  one  searching  the 
records  may  easily  find  what  is  contained  therein,  yet  a  deed  of 
conveyance  properly  filed  and  copied  on  the  records  is  recorded 
within  the  meaning  of  the  law,  and  imparts  notice  to  subsequent 


SOURCES    OF    INFORMATION.  83 

purchasers,  notwithstanding  the  failure  of  the  recording  officer 
to  index  it.     The  index  is  no  part  of  the  records.56 

In  a  very  few  States,  perhaps,  these  latter  statements  may 
not  apply,  for  in  several  instances  it  has  been  held,  under  stat- 
utes which  require  the  recorder  to  keep  indexes,  that  a  deed 
cannot  be  considered  as  legally  recorded  until  the  proper  entries 
of  at  least  its  essentials  have  been  made  in  the  general  index,57 
while  some  decisions  go  so  far  as  to  declare  that  the  index  itself 
is  an  essential  part  of  the  record.58 

Index  entries  are,  however,  frequently  held  sufficient  to 
charge  notice,59  and  this  too,  even  though  no  description  of  the 
property  is  entered,  but  simply  the  words,  "  see  record  "  60  or 
"  certain  lots  of  land ;  61  nor  is  it  necessarily  and  essentially 
a  prerequisite  to  a  valid  registration  that  the  index  should  com 
tain  a  description  of  the  lands  conveyed,62  and  if  it  discloses 
enough  to  put  a  careful  and  prudent  examiner  on  inquiry,  and 
if,  on  such  inquiry  an  adverse  title  would  have  been  ascertained, 
the  party  will  be  held  to  have  received  notice. 

56  Bishop    v.    Schneider,    46    Mo.  judgment    was    dependent    on    the 

472;   Chatham   r.   Bradford,   50   Ga.  act  or  omission  of  the  clerk  in  mak- 

327;     Board    of    Commissioners    v.  ing  the  index."     Green   v.  Garring- 

Babcock,   5   Oreg.   472;    Ins.   Co.   t'.  ton,  16  Ohio  St.  548;  but  see  Howe 

Dake,  87  N.  Y.   257;    Curtis  V.  Ly-  v.  Thayer,   49   Iowa,   154;   Lombard 

man,  24  Vt.  338;  Glading  v.  Friek,  v.  Culbertson,  59  Wis.  433. 

88   Pa.   St.  460.     The   index  is  not,  57  Hiles    v.    Atlee,    80   Wis.    219; 

as  a  rule,  made  essential  by  statute,  Hewitt  v.   Week,  59  Wis.  444;   and 

and  though  the  courts  in   some  in-  see,  Howe  v.  Thayer,  49  Iowa,  154. 

stances  seem  to  have  indicated  that  58  Bitchie    v.    Griffiths,    1    Wash, 

it  is  a  material  part  of  the  records  429. 

the  reasons  therefor  do  not  seem  to  59  Pringle  v.  Dunn,  37  Wis.  449 ; 

be  sound  or  in  consonance  with  the  Maxwell   v.  Hartman,  50  Wis.  667. 

genera!     doctrine    on    this    subject.  60  White    v.    Hampton,    13    Iowa, 

"  The  principle,"  observes  White,  J.,  200. 

"that    would    justify    the    holding  si  Bostwick  v.   Powers,    12   Iowa, 

the    index    to    be    essential    to    the  456. 

effective  character  of  the  record  in  62  Barney  v.  Little,  15  Iowa,  535. 

the     case     of     conveyances,     would  Local  statutes  will  go  far  in  the  so- 

seem  to   require   that  the   index   to  lution    of    this    vexed   question.     In 

be  kept  by  the  clerk  should  be  re-  most  cases  where  index  entries  are 

yarded    as   essential   to   the    lien   of  given  effect  as  records  there  will  be 

judgments;  yet  no  one,  we  suppose,  found    statutes   which    have    shaped 

would    claim    that    the    effect    of    a  the  decisions  of  the  courts. 


84  ABSTRACTS    OF    TITLE. 

§  69.  Notice  Lis  Pendens.  As  a  further  precaution  care- 
ful search  must  always  be  made  for  notices  .lis  pendens,  and 
attachments-.  These  are  usually  kept  in  books  separate  from 
the  records  of  deeds  and  mortgages,  and  very  frequently  are 
not  noted  on  the  reception  or  alphabetical  indices,  particularly 
in  smaller  counties  where  less  method  is  observed  than  in  larger 
and  more  active  places.  When  filed  according  to  law  they 
create  liens  upon  the  land  to  which  they  relate,  and  afford 
notice  to  all  subsequent  purchasers.  Whoever  takes  a  title  to 
property  in  litigation  will  be  bound  by  the  judgment  or  decree 
that  may  be  rendered  in  the  suit.63 

§  70.  Plaintiff  and  Defendant  Indexes.  The  plaintiff 
and  defendant  indexes  of  the  courts,  when  such  are  kept,  should 
be  further  consulted  for  judgments  against  any  of  the  parties, 
who  at  any  time  during  the  period  that  judgments  are  a  lien 
on  land,  have  held  title  to  the  property  in  question.  The  mat- 
ter of  pending  suits,  in  which  the  title  to  land  is  involved,  may 
also  be  ascertained  from  the  defendant's  index.  Where  no  no- 
tices lis  pendens  are  required  to  be  filed  with  the  recorder  of 
deeds,  as  is  the  case  in  many  States,  this,  perhaps,  will  be  about 
the  only  way  in  which  the  examiner  can  ascertain  the  facts. 
The  index  generally  shows  the  present  status  of  the  case  and 
refers  to  other  records  or  files  where  its  history  may  be  obtained. 

These  books  will  be  found  far  more  satisfactory  in  their  re- 
sults than  the  indexes  of  the  recorder's  office,  though  not  always 
available  to  detect  adverse  matters.  Should  these  useful  books 
not  form  a  part  of  the  machinery  of  the  clerk's  office,  recourse 
must  be  had  to  the  judgment  docket. 

§  71.  Tax  Records.  A  further  search  must  also  be  made 
in  the  records  of  the  county  clerk's  or  auditor's  office  for  de- 
linquent taxes,  tax  sales,  forfeitures  and  judgments,  the  indices 
and  aids  by  way  of  reference  in  this  department  being  usually 
very  ample,  and  affording  all  the  information  necessary. 

§  72.  Official  Certificates.  It  is  frequently  the  custom 
of  the  examiner  to  append  to  an  abstract  of  this  character,  the 

63Crooker  v.  Crooker,  57  Me.  395;  Leitch  v.  Wells,  48  N.  Y.  585; 
Jackson  v.  Warren,  32  111.  331. 


SOURCES    OF    INFORMATION.  85 

certificates  of  the  officers  having  the  custody  of  the  records  ex- 
amined, yet  in  a  majority  of  cases  such  certificates  do  not  mate- 
rially enhance  the  value  of  the  examination  as  evidence,  and  un- 
less forming  a  part  of  their  official  duty  create  no  responsibility 
on  the  part  of  the  certifying  officers. 

§  73.  Church  and  Parish  Records.  It  is  not  customary 
for  examiners  of  title  to  extend  their  inquiries  beyond  the 
public  records  kept  pursuant  to  law,  nor  wilL  the  exigencies  of 
many  cases  demand  a  wider  scope.  The  admirable  system  of 
registration  which  exists  in  every  State  is  amply  sufficient  for 
almost  every  purpose  connected  with  the  development  of  title 
and  the  preservation  of  the  muniments  by  which  same  is 
evidenced.  But  occasionally  a  missing  link  —  birth,  death,  or 
marriage  —  can  only  be  supplied  by  evidence  aliunde  the  rec- 
ord, and  to  effect  this,  recourse  must  be  had  to  less  reliable  tes- 
timony. 

Church  or  parish  records  are  frequently  resorted  to  in  the  de- 
termination of  doubtful  questions  of  pedigree  —  proof  of  birth, 
or  death  of  ancestor,  as  well  as  to  settle  questions  of  legitimacy 
in  matters  of  succession.  Nor  is  there  any  good  reason  why 
a  parish  register  should  not  be  received  and  credited.  It  has 
been  held  that  they  serve  a  purpose  equivalent  to  that  served 
by  family  records,  and  are  fairly  to  be  dealt  with  as  equivalent 
to  corporation  records,  which  are  generally  taken  as  evidence 
of  such  matters  as  are  recorded  in  the  usual  course  of  affairs.64 
While  there  is  not  much  authority  on  the  subject  in  this  coun- 
try, yet  all  the  analogies  and  reasons  which  apply  to  other  pre- 
sumptively correct  documents  apply  to  these.65 

64  Hunt  V.  Chosen  Friends,  64  phia  were  held  admissible  in  a  land 
Mich.  671.  controversy    in    Kentucky,    tried    in 

65  The  question  was  decided  in  one  of  the  United  States  Courts, 
favor  of  such  entries  in  an  early  It  was  there  expressly  held  that 
case  in  the  Supreme  Court  of  the  they  were  competent  testimony, 
United  States,  where  the  entries  Lewis  v.  Marshall,  5  Pet.  (U.  &.) 
of  burial  in  a   church   in   Philadel-  470. 


CHAPTER  VI. 

INDICES    AND    KEFEKENCES. 
§  74.     Importance  of  indexes.  §  82.     The  irregular  index. 


75. 

Patent  systems. 

83. 

The  tax  index. 

76. 

The  Government  tract  book. 

84. 

The  judgment  index. 

77. 

Field    notes    of    Government 

85. 

Decrees    and    sales    in    chan> 

surveys. 

eery. 

78. 

The  original  entry  books. 

86. 

Vowel  index. 

79. 

Document  number  index. 

87. 

Laying  out  the  books. 

80. 

Long  form  entries. 

88. 

Resume. 

81. 

The  tract  index. 

§  74.  Importance  of  Indexes.  In  many  portions  of  the 
United  States  no  indexes  are  kept  by  the  examiner  of  titles,  who 
relies,  in  the  preparation  of  his  abstract,  solely  upon  such  mea- 
ger facilities  and  aids  as  are  usually  afforded  by  the  public 
offices,  the  details  of  which  were  considered  in  the  preceding 
chapter.  A  perfect  and  complete  abstract  however,  can  be 
compiled  only  with  the  assistance  of  properly  prepared  indices 
and  references.  By  the  aid  which  they  afford  the  examiner 
will  be  enabled  to  produce  a  perfect  chain  of  recorded  title, 
however  intricate  or  complicated  it  may  be,  while  without  them 
diligence  and  learning  will  avail  but  little,  and  the  abstract,  as 
a  necessary  consequence,  will  be  incomplete  and  lacking  in 
many  important  particulars. 

§  75.  Patent  Systems.  In  this  age  of  labor-saving  in- 
ventions it  is  not  strange  that  many  schemes  should  have  been 
devised  to  lighten  and  abridge  the  labors  of  the  examiner  in  the 
preparation  of  abstracts  of  title.  These  "  systems  "  are  usu- 
ally protected  by  copyright  or  letters  patent,  and  are  warranted 
by  their  respective  originators  and  proprietors  to  be  fully  ade- 
quate for  every  purpose  and  equal  to  all  the  exigencies  that  can 
possibly  arise.  ISTot  infrequently  some  of  these  patent  systems 
possess  elements  of  merit,  and,  in  a  limited  way,  may  encom- 

86 


INDICES   AND   REFERENCES.  87 

pass  the  end  for  which  they  are  designed.  Experience  has  not 
demonstrated  their  usefulness,  however,  but  on  the  contrary,  in 
most  cases,  has  shown  their  utter  inutility.  As  a  rule  they 
are  highly  chimerical,  and  in  practice  generally  prove  a  fraud, 
a  delusion  and  a  snare. 

There  is  no  royal  road  to  abstract  making,  and  the  examiner 
who  desires  to  produce  only  just  and  perfect  work  will  derive 
but  little  assistance  from  any  method  that  seeks  to  dispense 
with  conscientious  labor  or  to  avoid  the  deep  and  thorough  in- 
vestigation essentially  necessary  to  a  full  and  accurate  develop- 
ment of  title.  An  abstract  prepared  by  any  of  the  patent 
methods  which  have  been  brought  to  the  attention  of  the  writer, 
if  at  all  complicated  or  involving  intricacies  of  title,  must  needs 
be  imperfect,  and  hence  unreliable,  and  counsel  should  reject 
such  compilations,  or  at  most  pass  only  a  qualified  opinion. 
The  methods  detailed  in  this  volume  are  neither  patent  nor 
copyright  systems.  They  are  the  results  of  years  of  practical 
experience,  and  are  those  now  employed  by  the  abstract  makers 
of  Chicago,  where  this  science  has  been  more  fully  developed 
than  in  any  other  place  in  the  world.  They  are  freely  given 
to  the  profession  and  may  be  used  by  any  person.1 

We  may  now  direct  our  attention  to  the  necessary  equip- 
ment of  a  well  appointed  abstract  office  and  the  books  that  will 
De  required  for  the  proper  and  expeditious  transaction  of  the 
business  of  abstract  making. 

§  76.  The  Government  Tract  Book.  Among  the  perma- 
nent archives  of  a  local  government  land  office  are  a  series  of 
township  plats  and  tract  books,  upon  which  it  is  the  duty  of 
the  Register  to  note  a  proper  entry  of  the  fact  of  the  sale  of 
any  land  in  the  district.  These  tract  books  are  arranged  in 
the  regular  order  of  townships  in  a  range,  and  of  sections  in 
the  township,  or  fractional  township,  and  afford  all  the  neces- 
sary particulars  of  the  method  of  the  disposal  of  the  land  in 

l  This  book  is  fully  protected  by  various    methods    herein    described 

copyright,   and   no    person   may   ap-  are  given  to  the  profession  and  may 

propriate  any  part  thereof  without  be  used  by  any  person, 
permission  of  the  author.     But  the 


88  ABSTRACTS   OF   TITLE. 

the  district ;  description  of  land  sold ;  name  of  purchaser ;  price 
paid ;  number  of  certificate,  etc.  Where  the  land  office  is  still 
in  operation  these  particulars  can  be  obtained  from  the  Register, 
and  in  districts  where  same  has  been  discontinued,  the  archives 
are  usually  deposited,  in  pursuance  of  an  act  of  Congress,  in 
the  office  of  the  Secretary  of  State,  or  some  other  designated 
officer  of  the  State,  in  which  the  land  office  was  situate.  A 
copy,  or  compilation,  of  the  Government  Land  Office  records 
forms  the  foundation  of  the  examiner's  indices,  and  will  be 
found  an  invaluable  adjunct,  if  not  an  indispensable  requisite, 
to  all  effective  examinations  showing  the  entire  course  of  title. 
This  index  should  briefly  indicate  the  governmental  descrip- 
tion of  the  land;  the  name  of  the  purchaser;  the  character  of 
the  entry,  as  sale,  homestead,  etc. ;  the  date  of  entry ;  number  of 
certificate,  and  note  of  cancellation  2  and  re-entry,  if  any ;  and 
finally  the  issuance  of  patent,  with  date  and  name  of  patentee. 
Recourse  for  the  latter  information  must  be  made  to  the  Gen- 
eral Land  Office  at  Washington,  if  necessary,  as  the  possession 
of  the  information  is  essential  and  will  save  much  time,  annoy- 
ance and  many  perplexing  questions  to  client  and  counsel,  owing 
to  the  usual  loose  methods  of  early  proprietors  and  the  imper- 
fection of  county  records. 

§  77.  Field  Notes  of  Government  Surveys.  The  field 
notes  of  the  government  surveyors  afford  the  elements  from 
which  the  plats  and  calculations  in  relation  to  the  public  sur- 
veys are  made,  and  are  the  source  wherefrom  the  description 
and  evidence  of  locations  and  boundaries  are  officially  de- 
lineated and  set  forth.  They  contain  a  minute  record  of  all 
the  official  acts  of  the  surveyor  in  relation  to  the  measurement 
of  the  public  lands,  establishing  of  boundaries,  etc.,  and  present, 
as  far  as  possible,  a  full  and  complete  topographical  description 
of  the  country  surveyed.  A  copy  of  these  notes,  as  well  as  of 
the  official  township  plats  made  in  connection  therewith,  should 

2  The   Commissioner   of   the   Gen-  N.   Dak.    452,   for   a  very   full   and 

eral    Land    Office    has    power,    for  lucid  discussion.     And  see,  Jones  v. 

cause,   to    cancel    entries    of    public  Meyers,  2   Idaho2   793. 
lands.    See,   Parsons   v.   Venzke,   4 


INDICES   AND   REFEKENCES.  89 

be  found  in  every  abstract  office,  for  the  field  notes  of  the  orig- 
inal survey  enter  into  and  form  part  of  the  description  of  land 
in  all  the  certificates  of  entry  and  patents  from  the  government, 
and  are  of  controlling  importance  in  determining  the  true  loca- 
tion of  public  lands.3 

The  original  monuments,  as  long  as  they  can  be  ascertained, 
afford  the  most  satisfactory  if  not  conclusive  evidence  of  the 
lines  originally  run,  which  are  the  true  boundaries  of  the  tract 
surveyed,  whether  they  conform  to  the  plat  and  field  notes  or 
not,  on  the  principle  that ,  monuments  always  control  courses, 
distances,  quantity,  etc.  These  monuments  are  regarded  as 
facts,  while  the  field  notes  and  plats  indicating  courses,  distances 
and  quantities,  are  but  descriptions  which  serve  to  assist  in  as- 
certaining the  facts,4  yet  when  such  monuments  become  lost  or 
obliterated  by  time,  accident  or  design,  the  notes  and  plats 
are  all  that  remain  to  fix  the  original  location  of  the  monu- 
ments and  determine  true  boundaries.5  No  description  can 
be  more  definite,  certain  and  satisfactory  than  according  to  gov- 
ernment survey.6 

§  78.  The  Original  Entry.  The  books  used  in  the  busi- 
ness of  abstract  making  resemble,  in  many  particulars,  those 
in  common  use  in  mercantile  transactions,  the  day  book  and 
ledger  of  the  merchant  bearing  a  strong  analogy  to  the  original 
entry  and  index  of  the  examiner.  The  series  of  books  desig- 
nated as  "  original  entries,"  comprise  an  epitome  of  the  trans- 
actions of  the  day  in  the  various  record  offices  of  the  county, 
so  far  as  the  same  may  in  any  way  affect  or  implicate  the  title 
to  land,  set  forth  with  whatever  degree  of  fullness  the  exi- 
gencies of  the  occasion  Avill  admit,  or  the  inclination  of  the  ex- 
aminer may  dictate.  There  is  no  special  method  of  arranging 
these  books,  the  convenience  of  the  compiler  usually  determining 
this  point,  the  only  essential  being  that  the  transactions  of  the 

3  Hunt  V.  Rowley,  87  111.  491.  5  Sawyer    v.    Cox,    63    111.     130; 

4  McClintoek  v.  Rogers,  11  111.  Bauer  v.  Gattmanhausen,  65  111. 
279;   Watrous  v.  Morrison,  33  Fla.       499. 

261;    Kincaid    v.    Dormey,    47    Mo.  6  Kruse   v.   Scripps,   11    111.   93. 

337. 


90  ABSTKACTS    OF    TITLE. 

day  are  shown  under  proper  chronological  heads.  Where  the 
volume  of  business  daily  passing  through  the  recorder's  office  is 
very  large,  only  a  brief  note,  showing  the  nature  of  the  instru- 
ment, parties,  date,  and  a  condensed  description  of  the  property, 
can  be  shown  on  the  original  entry,  the  date  at  the  top  of  the 
page  showing  the  date  of  filing  for  record,  thus: 

Nov.  29,  1882. 


Doc.  No.        Grantor. 


Grantee.       Inst.     Date.         Description. 


Inst. 

Date. 

In  Chicago,  where  from  two  to  three  hundred  instruments 
frequently  pass  through  the  recorder's  office  in  a  single  day, 
the  above  method  is  pursued,  the  examiner  making  his  entries 
from  the  original  instruments,  the  only  practical  system  under 
circumstances  similar  to  the  foregoing.  This  information  may 
also  be  obtained  from  the  reception  indexes  of  the  recorder's 
office,  should  such  books  be  kept,  and  while  this  might  be  suffi- 
cient in  a  majority  of  cases,  yet  oversights  or  omissions  are  lia- 
ble to  occur,  particularly  where  the  deeds  are  noted  in  al- 
phabetical and  not  numerical  order.  The  danger  is  apparent 
when  it  is  remembered  that,  where  a  deed  properly  acknowl- 
edged and  certified,  is  left  for  record  with  the  recorder,  it  takes 
effect  from  that  date,  although  not  entered  on  the  receiving 
book  until  afterward.7 

It  will  sometimes  happen  that  errors  are  made  by  the  re- 
cording officer  in  transcribing.  Where  the  examiner's  entry  is 
made  from  the  original  document  these  errors  may  be  detected 
and  corrected  on  the  compilation  of  abstracts.  In  practice 
this  is  a  circumstance  of  not  infrequent  occurrence. 

Where  the  original  instrument  forms  the  basis  of  the  entry 
a  further  index  is  necessary  to  furnish  the  book  and  page  of 

7  Poplin  v.  Mundell,  27  Kan.  138;   and  see  Haworth  v.  Taylor,  108  111. 
275. 


INDICES    AND   REFERENCES. 


91 


the  record  for  ready  reference  in  making  the  abstract,  which 
is  easily  accomplished  where  the  now  very  common  system 
of  document  numbers  is  employed.  After  the  instrument  has 
been  formally  filed  for  record  the  actual  transcribing  does 
not  occur  for  several  days  or  perhaps  weeks,  yet  as  the  in- 
strument takes  effect  and  operates  as  constructive  notice  from 
the  time  it  is  filed,  from  obvious  reasons  the  examiner  must 
obtain  his  notes  of  same  at  that  time  and  not  wait  for  the  un- 
certain contingency  of  actual  transcription.  The  document 
number  is  placed  on  the  instrument  at  the  time  of  filing,  and 
forms  a  portion  of  the  original  entry ;  it  is  posted  as  well  on  the 
tract  index,  and  in  making  up  the  chain,  as  hereafter  explained, 
furnishes  a  key  by  which  the  particular  instrument  is  always 
identified. 

§  79.  Document  Number  Index.  As  the  numbers  run 
in  consecutive  order,  a  book  called  the  Document  Number  Index 
is  provided,  in  which  all  the  numbers  of  the  series  are  first 
written  or  printed.  At  the  close  of  business  hours  of  each  day, 
all  the  instruments  which  have  been  transcribed  during  the 
day  are  collected,  and  opposite  the  number  of  the  deed  in  the 
Document  Number  Index,  are  written  the  book  and  page  on 
which  it  has  that  day  been  recorded,  thus  furnishing  a  ready 
and  easy  reference  to  the  books  of  the  office,  thus : 

1—100. 


Doe.  No. 

Book. 

Page. 

Doc.  No. 

Book. 

Page. 

100 

614 

520 

§  80.  Long  Form  Entries.  Whenever  practicable,  the 
original  entry  may  consist  of  a  full  abstract  of  every  instrument. 
In  the  cities  this  is  frequently  impossible,  but  in  sparsely  set- 
tled counties,  or  in  places  where  only  a  small  number  of  con- 
veyances are  filed  daily,  it  can  easily  be  accomplished,  and  the 


92  ABSTRACTS    OF    TITLE. 

examiner  will  then  have,  in  his  own  possession,  a  complete 
duplicate  of  the  material  parts  of  all  the  records  of  the  county, 
an  acquisition  that  circumstances  may  make  of  inestimable 
value.  By  this  method  the  greater  portion  of  the  abstract  can  be 
compiled  without  consulting  the  records,  thus  effecting  a  great 
saving  of  time,  labor  and  expense,  and  in  many  other  ways 
it  will  be  found  equally  advantageous.  It  is  unnecessary  to 
dilate  on  the  subject  of  care  and  accuracy  in  the  compilation  of 
these  entries,  or  the  necessity  of  thorough  revision.  When 
made  in  short  form  from  the  original  documents,  errors  may 
be  detected  on  abstracting  the  deed  from  the  records,  but  if  the 
long  form  system  be  used,  an  error  perpetrated  in  the  entries 
will  be  repeated  in  the  indexes,  and  again  in  the  abstract,  fur- 
nishing endless  confusion  and  a  remote  possibility  of  a  law  suit 
for  damages. 

While  this  method  possesses  obvious  advantages  it  is  not 
without  disadvantages.  An  abstract  is  presumed  to  represent 
the  actual  condition  of  the  record  and  to  have  been  compiled 
therefrom.  The  record  may  be  erroneous,  but  in  such  case  so 
also  should  the  abstract.  The  examiner's  entry  may  be  a  cor- 
rect synopsis  of  the  instrument^  but  if  the  abstract  is  made  from 
such  entry  and  not  from  the  record  it  may  not  be  a  true  re- 
cital of  the  instrument  as  it  appears  upon  the  record.  For 
this  reason,  even  when  a  long  form  of  entry  is  used,  the  abstract 
should  be  compiled  from  the  records  rather  than  from  the  en- 
tries, and  if  divergencies  appear  they  should  be  properly  noted. 
In  any  event,  even  though  the  abstract  may  be  prepared  from 
the  examiner's  own  long  form  entries  it  should  nevertheless  be 
compared  with  the  record  before  it  leaves  his  hands. 

§  81.  The  Tract  Index.  The  Tract  Index  occupies  much 
the  same  position  in  the  abstract  office,  that  the  great  ledger  does 
in  the  counting  room.  It  is  the  receptacle  for  all  the  notes 
of  the  entry  books,  where  the  great  mass  of  each  day's  trans- 
actions is  separated,  classified  and  arranged,  and  exhibits  at  a 
glance  on  its  broad  pages  the  balance  sheet  of  all  the  land  titles 
of  the  county.  It  is  the  foundation  stone  upon  which  the  entire 
superstructure  of  the  business  rests,  and  the  source  from  whence 


INDICES   AND   EEFEEENCES. 


93 


the  examiner  draws  all  his  primary  information  in  preparing 
the  abstract.  This  index  is  arranged  with  sole  reference  to  the 
land  in  the  county,  by  sections  or  parts  of  sections  in  case  of 
imsubdivided  lands,  and  by  lots,  blocks  or  subdivisions  in  re- 
spect to  such  as  have  been  resurveyed  and  platted.  For  con- 
venience it  should  contain,  as  far  as  practicable,  all  the  specific 
allusions  to  particular  tracts  found  upon  the  records,  whether 
consisting  of  deeds,  agreements,  releases,  attachments,  sales,  lis 
pendens,  or  other  instruments,  in  any  way  affecting  title  to 
such  tracts,  or  mentioning  same,  or  any  part  thereof.  In  ad- 
dition all  other  instruments,  capable  of  definite  location,  though 
containing  no  description,  should,  as  in  case  of  specific  instru- 
ments, be  posted  under  the  particular  classification  to  which 
they  properly  belong.  For  ordinary  use  six  or  eight  quire 
demy  8  books  will  be  found  the  most  serviceable,  the  number 
of  volumes  being  regulated  by  the  size  of  the  county,  popula- 
tion, prospects,  etc.  The  books  should  be  ruled  across  with 
heavy  and  faint  blue  lines,  and  the  page  divided  with  red  lines 
in  the  following  proportions: 

Sec.  16—1—23. 


2002 


Jno.  Doe  &  wf 


Rieh'd  Roe 


NW1N  W 


M. 


1-16-78 


2-10-78 


1—25 


A— 515 


The  foregoing  sample  page  would  be  posted  from  the  orig- 
inal entries  as  follows:  the  left  hand  column  is  rilled  by  the 
document  number,  the  second  column  by  the  grantor's  name, 
the  third  by  the  grantee's,  while  the  wide  space  next  following 


8  The  demy  page  is  recommended 
mainly  on  account  of  its  width,  but 
cap  size  is  more  convenient  for 
handling.  The  demy  sheet  is  16x21, 
making  a  page  16x10%;  the  cap 
page   is    14x81/;,.     For  the    original 


entry  a  four  quire  cap  is  recom- 
mended. Should  a  double  page  be 
devoted  to  the  tract  index  cap  will 
also  be  found  to  be  the  more  con- 
venient form. 


94  ABSTRACTS    OF    TITLE. 

is  devoted  to  a  brief  description  of  the  property.  The  nature 
of  the  instrument,  indicated  by  the  initial  letter  or  some  abbre- 
viation, occupies  the  next  space,  while  in  the  two  succeeding 
columns  much  information  may  be  condensed  into  little  space 
by  writing  on  both  the  heavy  and  faint  lines.  Thus,  in  the 
first  column  the  upper  line  is  intended  to  represent  the  date 
of  the  instrument;  as,  first  month,  sixteenth  day,  1878,  the 
lower  line  in  like  manner  representing  the  date  of  record.  So, 
in  the  last  column,  the  upper  line  will  represent  the  book  and 
page  of  the  entry,  which,  if  written  in  extenso  will  be  the  only 
reference  needed  on  making  the  chain,  the  entry  supplying 
all  the  desired  information  that  could  be  afforded  by  the  rec- 
ord ;  the  lower  line  of  this  column  represents  the  book  and  page 
of  the  record.  Should  the  examiner  so  desire,  another  column 
may  be  added,  in  which  are  noted  "  remarks,"  notes  of  refer- 
ence, satisfactions,  re-records,  etc.,  all  of  which  will  be  found  to 
greatly  enhance  the  value  of  the  volume. 

In  posting  these  books,  economy  of  space  should  always  be 
kept  in  view,  otherwise  they  will  soon  become  numerous  and 
cumbersome,  greatly  retarding  the  examiner's  labors.  The 
faint  lines  should  always  be  used  in  case  of  long  descriptions, 
and  the  poster  is  allowed  considerable  latitude  in  the  matter 
of  abbreviation  and  condensation.  So  long  as  the  identity  of 
the  parcel  is  preserved  the  description  used  in  this  book  is  of 
little  moment ;  for  it  will  be  remembered  this  is  but  an  index 
to  the  place  where  the  full  and  original  description  may  be 
found.  For  example :  A  description  commences  at  the  north- 
east corner  of  the  northeast  quarter  of  a  stated  section,  town 
and  range,  and  describes  in  a  lengthy  manner,  by  metes  and 
bounds,  an  irregular  shaped  tract  which  contains  eleven  acres, 
the  description  ending  at  the  place  of  beginning.  It  will  save 
time  and  space,  and  be  just  as  correct  as  an  index,  to  post  the 
parcel  as  "11  ac.  in  K  E.  cor.  K  E.  1/4." 

§  82.  Irregular  Index.  This  index  is  designed  as  a  re- 
ceptacle for  all  matters,  except  judgmpnts,  that  from  their 
nature  do  not  admit  of  specific  porting  in  the  tract  indices.  Of 
this  nature  are  general  powers  of  attorney,  unless  the  examiner 


INDICES   AND   REFERENCES.  95 

sees  fit  to  keep  a  separate  book  for  same;  releases  and  satisfac- 
tion pieces,  which  describe  no  property  and  are  incapable  of 
definite  location;  general  confirmations,  assignments,  affidavits, 
etc.  The  index  consists  of  two  books,  arranged  alphabetically, 
by  grantors  and  grantees,  and  is  used,  in  compiling  the  chain, 
in  exactly  the  same  manner  as  the  judgment  indices.  It  is 
posted  in  the  same  manner  as  the  tract  index,  except  that  in 
place  of  the  description  of  the  property  is  noted  a  brief  state- 
ment of  the  subject-matter  of  the  instrument,  the  other  details 
being  the  same.  In  all  compilations  this  index  should  be 
carefully  searched  for  the  names  of  all  parties,  grantor  and 
grantee,  who  at  any  time  during  the  period  covered  by  the 
examination  have  held  title  to  the  land  in  question,  or  possessed 
any  equities  therein.  In  case  of  variance  in  the  orthography 
of  a  name  it  is  advisable  to  post  it  both  in  the  category  to 
which  the  spelling  of  the  name  would  properly  consign  it,  and 
in  the  section  where  the  examiner  has  reason  to  believe  it 
rightfully  belongs.  Thus  should  the  name  as  found  be  "  Lau- 
son  "  and  the  examiner  from  other  indicia  have  reason  to  be- 
lieve the  name  is  "  Slauson,"  the  two  names,  to  insure  accuracy, 
should  be  noted  on  the  index,  the  latter  being  identified  by  any 
system  of  marks  the  examiner  may  adopt  to  show  that  it  is  a 
substitute. 

§  83.  Tax  Index.  With  the  exception  of  sales  for  taxes, 
everything  capable  of  such  treatment  should  be  posted  in  the 
tract  index.  Tax  sales,  however,  can  best  be  handled  in  a  sep- 
arate volume,  and  as  a  large  portion  are  followed  by  redemp- 
tion much  dead  matter  will  thus  be  kept  off  those  books.  This 
index  is  posted  after  every  sale,  and  should  be  arranged  to 
show:  the  description  of  the  property;  the  name  of  the  person 
against  whom  the  tax  is  assessed ;  the  nature  of  the  tax  for 
which  the  sale  was  made,  as  general,  special,  state,  county,  mu- 
nicipal, special  assessment,  and  the  like ;  the  amount  of  the  tax ; 
the  year  for  which  it  was  levied ;  the  date  of  sale ;  and  if  desired 
the  name  of  the  purchaser.  On  the  right  hand  margin  of  the 
page  a  space  should  be  left  on  which  may  be  entered  the  fact 
of  redemption.     At  the  top  of  the  page  die  section  or  subdi- 


96 


ABSTRACTS    OF    TITLE. 


vision  is  written,  as  in  the  tract  index.  In  compiling  the  chain 
of  title  this  book  is  consulted  in  the  same  manner  as  the  tract 
index,  and  a  list  of  all  the  sales,  forfeitures,  etc.,  taken  off, 
which  is  then  sent  to  the  office  of  the  custodian  of  the  tax  rec- 
ords and  verified  by  his  books.  All  the  redemptions  are  stricken 
from  the  chain,  and  existing  liens  shown  as  hereafter  directed. 
,  A  note  of  all  the  redemptions  is  then  made  in  the  index,  thus: 

Sec.  10—12  —  14. 


S  W  H  S  W  VA 


Thos.  Higgins 


Apr 

10 

Gen 

1SS0 

1881 

10,  50 

S.  R.Smith 


Red.  June  1,81 


Should  circumstances  permit  the  examiner  to  procure  a  daily 
list  of  redemptions,  this  index  would  be  much  more  servicable, 
and  considerable  labor  would  be  saved  in  preparing  the  ab- 
stract. Such  a  course,  however,  is  rarely  practicable,  and  the 
method  above  indicated  is  that  usually  followed. 

It  has  now  become  a  common  practice  for  examiners  of  title 
to  show  special  assessments  and  impositions  of  like  character. 
When  this  is  done  the  better  way  is  to  keep  a  special  index  to 
all  confirmed  special  assessments  and  where  inheritance  taxes 
are  levied  on  the  estates  of  decedents  a  further  index  covering 
th  --■•  matters  should  also  be  provided.  Confirmed  special  as- 
sessments may  be  noted  on  the  general  tract  index  and  inher- 
itance taxes  might  be  posted  in  the  irregular  index,  but  the  bet- 
ter plan,  and  that  which  is  conducive  to  the  best  results  in 
abstract  making,  is  to  keep  special  indices  in  both  cases. 

§  81.  Judgment  Index.  The  Judgment  Index  consists 
simply  of  an  alphabetically  arranged  index  of  names,  taken 
from  the  court  files  exery  day,  -  and  shows:  the  name  of  the 
judgment  debtor;  the  plaintiff  or  judgment  creditor;  the  court 
in  which  the  judgment  is  docketed ;  the  general  number  of 
the  case;  the  time  of  rendition  or  docketing;  the  amount  of 
the  judgment  and  costs,  and  the  fact  of  satisfaction  in  the  same 


INDICES   AND    REFERENCES. 


97 


manner  as  tax  liens.  In  practice  this  book  is  used  the  same  as 
the  tax  index.  The  following  will  be  found  a  suitable  form  for 
the  page: 


201 


Smith,  John  R. 


Union  Towing  Co. 


Circuit 


Mar 
10 

18S1 


150  00 


Sat.  Mar.  15, 18S2 


If  desired,  a  further  column  may  be  added,  showing  the  na- 
ture of  the  suit.  This  book  is  used  only  for  money  judg- 
ments, or  such  as  create  a  lien  on  land.  Decrees  in  chancery, 
or  actions  and  proceedings  directly  involving  the  title  to  land, 
are  posted  in  the  general  tract  indices. 

§  85.  Decrees  and  Sales  in  Chancery.  No  separate  in- 
dex need  be  kept  for  proceedings  in  court  of  an  equitable  na- 
ture. For  pending  suits  a  note  of  the  lis  pendens  or  attach- 
ment as  found  in  the  registry  of  deeds  is  sufficient.  For  de- 
crees, orders  or  sales  made  in  pursuance  thereof  an  original 
entry  should  be  kept  as  in  case  of  deeds,  etc.,  showing  as  fully 
as  may  be  the  entire  transaction,  and  posted  as  other  instru- 
ments are  in  the  general  tract  index.  These  proceedings  have 
all  the  stability  of  conveyances  between  individuals,  and  form 
permanent  muniments  of  title.  Execution  sales  may  be  noted 
in  like  manner. 

For  greater  convenience  many  examiners  keep  special  indices 
of  decedents'  estates,  as  well  as  of  the  estates  of  minors  and  other 
persons  under  disability.  Where  this  can  be  done  the  practice 
is  recommended.  In  large  and  populous  counties  some  such 
a  course  becomes  almost  a  necessity. 

§  86.  Towel  Index.  In  addition  to  the  books  described 
in  the  foregoing  paragraphs,  all  of  which  are  indispensable  in 
a  properly  equipped  abstract  office,  there  are  a  number  of  sup- 
plemental volumes  that  may  be  used  to  advantage.  Chief 
among  these  supplemental  books  may  be  mentioned  an  index 
to  grantees  arranged  alphabetically,   and,   for  the  purpose  of 

more  ready  reference,  by  vowel  sounds.     In  this  book  are  writ- 

7 


98  ABSTRACTS    OF    TITLE. 

ten  the  names  of  all  grantees,  and  after  same  the  book  and 
page  of  the  record  where  the  name  appears  and  a  reference 
to  the  book  and  page  of  the  original  entry  of  the  examiner. 
The  name  is  written  but  once,  all  subsequent  transfers  being 
posted  opposite  same  by  simple  reference  to  book  and  page. 
A  form  for  this  book  will  readily  suggest  itself. 

The  primary  object  of  this  index  is  to  furnish  a  ready  means 
of  ascertaining  the  present  or  past  interests  of  any  individual 
wTho  at  any  time  has  held  the  legal  title  to  lands  in  the  county, 
and  to  facilitate  search  for  real  estate  standing  in  the  name  of 
judgment  debtors. 

§  87.  Laying  Out  the  Books.  Considerable  judgment 
must  be  exercised  in  laying  out  a  set  of  abstract  books,  not 
so  much  for  economy  in  material,  though  this  may  be  an  ob- 
ject, but  for  economy  of  time  in  their  use,  which  is  a  very  im- 
portant consideration.  The  aim  of  the  examiner  should  be 
to  have  his  indices  preserve  such  a  correspondence  in  all  their 
parts  that  posting  shall  cease  in  every  division  of  the  work  at 
about  the  same  time.  To  attain  this  end,  where  a  section  or 
subdivision  is  thickly  populated  and  sales  are  frequent,  consid- 
erable space,  should  be  devoted  to  it,  and,  if  necessary  for 
greater  convenience,  the  land  may  be  indexed  by  half  or  quarter 
sections  instead  of  sections.  In  less  active  localities,  the  index 
may  be  by  sections  and  less  space  should  be  used.  In  a  new 
county  this  question  must  be  determined  by  geographical  con- 
siderations, present  location  of  towns,  railroads,  water  ways, 
etc.  In  older  places  the  experience  of  the  past  will  usually 
furnish  a  safe  guide  in  this  respect  for  the  future. 

Alphabetical  indexes  are  laid  out  on  technical  and  arbitrary- 
principles  based  upon  experience  in  the  distribution  of  initial 
letters  in  names.  Thus  it  is  found  that  certain  letters  occur 
much  more  frequently  than  others  in  the  commencement  of 
names,  and  space  must  be  given  accordingly.  The  table  on 
the  opposite  page  will  be  found  a  safe  guide: 

Tims  it  will  be  seen,  in  a  book  containing  thirty  pages  one 
page  will  be  sufficient  for  names  beginning  with  the  letter  "  A." 
Barnes  beginning  with  the  letter  "  B  "  are  much  more  frequent, 


INDICES    AND    KEFERENCES. 


99 


SCALE   EOE.   INDEXING    BOOKS. 


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5 
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5 
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5 
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7 
6 

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6 

10 
3 
4 
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10 
3 
3 

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13 

8 

8 
4 
7 
7 

12 
3 
4 
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6 

11 
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4 

O 

& 

5 

15 

9 

8 

4 
7 
8 
14 
3 
5 

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8 

13 

3 

4 

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01 

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17 
10 

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01 

6 
18 
11 

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20 

12 

11 

6 

10 

11 

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3 

6 

8 

10 

18 
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6 

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01 

6 

21 

13 

12 

7 

11 

11 

19 

3 

7 

9 

11 

18 

5 

7 

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14 

13 

7 

11 

12 

21 

4 

7 

10 

12 

20 

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8 
2.7 
15 
13 

7 

12 

13 

23 

4 

8 

11 

13 

21 

0 

7 

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01 
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8 
26 
16 

14 
8 
13 
14 
25 
5 

8 
11 
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0 
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8 

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9 

28 

17 

15 

8 

13 

15 

27 

5 

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12 

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25 

6 

8 

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A 

1 

1 
3 
2 
2 
1 

1 

4 
3 
3 
1 
3 
3 

2 
6 
4 
4 
2 
3 
3 
6 
2 
3 
2 
3 
5 
2 
2 

1010J11 

3032J34 

11!  12!  12 

13 

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2 

3537 

38 

23 
21 

40 

c 

1 

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1 

18 

10 

8 

14 

16 

28 

5 

10 

13 

16 

26 

6 

0 

9 

19  M 

21 
18 
10 
17 
IS 
32 

6 
11 
15 
18 
31 

7 
10 
10 

22 
19 
11 
18 
20 
33 

0 
11 
13 
19 
32 

7 
11 
11 

24 

D 

910 

1/ 
9 
15 

10 

29 

0 

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14 

10 

27 

7 

9 

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18 
10 
16 
17 
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6 
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29 

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22 

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5 

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0 

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15 

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9 

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7 
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4 
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1 
1 

1 
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19 

21 
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0 
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15 
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7 
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12 

20 

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22 

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1 

1 
1 
1 
1 

3 
1 
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1 
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4 
1 
2 
2 
3 
4 
1 
1 

36 

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6 

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12 

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16 

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W 

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2 

1 

1 

3 
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1 

36 

Mc 

N 

7 
12 

0 

1 

1 

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3 

4 

4 

5 

6 

6 

7 

7 

7 

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1 

1 

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2 

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3 

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5 

5 

6 

7 

7 

7 

8 

8 

9 

10 

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11 

11  12 

13 

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1 

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7 
4 
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5 

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5 
1 

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G 

10 

6 

1 

1 

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13 

7 

1 

1 

14 

8 
1 

1 

10 

10 

9 

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1 
11 
17 
10 

2 

1 
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19 
11 

2 

1 

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22 
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13 

2 

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15 

23 
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27 
15 

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31 
17 

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2 

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33 
18 

2 

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20 
35 
19 

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22 

38 

21 

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23 

40 

22 

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3 

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42 

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24 

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4 

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1 

1 

1 

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1 

i 

1 

1 

2 

2 

2 

3 

3 

3 

3 

3 

3 

3 

3 

3 

3 

4 

4 

w 

2 

2 

5 

6 

9 

11 

13 

15 

17 

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20 

22 

24 

26 

28 
1 

29 

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33 
1 

35 

2 

37 
2 

39 

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3 

42 

43 

X 

1 

1 

1 

1 

J 

1 

1 

1 

1 

1 

J 

1 

1 

1 

3 

Y 

1 

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1 

J. 

J 
1 

J 
1 

1 

1 

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1 

2 
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2 

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3 

and  hence  two  pages  should  be  devoted  to  these  names.  And 
so  the  number  of  pages  for  each  letter  will  be  proportionately 
increased  with  the  increasing  size  of  the  book,  so  that  if  it  con- 
tains 480  pages,  forty  of  them  may  properly  be  set  aside  for 
the  letter  "  B." 

§  88.  Resume.  The  foregoing  brief  sketch,  it  is  hoped, 
will  furnish  sufficient  hints  to  enable  one  with  no  previous  ex- 
perience to  lay  out  and  keep  a  set  of  abstract  books  in  a  method- 
ical and  intelligible  manner.  Neatness  is  a  prime  necessity  in 
compiling  the  books.  Chirography  should  be  plain  and  distinct. 
Only  the  very  best  writing  fluid  should  be  used.     Memoranda, 


100  ABSTRACTS    OF    TITLE. 

not  of  a  permanent  character,  should  be  made  with  a  hard 
lead  pencil,  and  as  little  as  possible  should  be  made.  When 
the  memoranda  has  answered  its  purpose  it  should  be  erased. 
For  their  better  preservation  books  should  be  encased  in  canvas 
covers  and  a  fire-proof  receptacle  should  be  their  abiding  place 
at  all  times  when  not  in  actual  use.  Many  things  will  suggest 
themselves  to  the  examiner,  arising  from  local  causes,  while  his 
own  ingenuity  will  enable  him  to  improve  on  the  forms  here 
given.  Having  then  started  the  books,  the  next  thing  in  order 
is  to  prepare  an  abstract  from  them,  and  this  will  form  the  sub- 
ject of  the  next  chapter. 


CHAPTER  VII. 

COMPILING    THE   ABSTRACT. 

§  89.  Generally  considered.  §  98.  Examiner's  notes. 

90.  Extent  of  the  search.  99.  Irregular  instruments. 

91.  Making  the  chain.  100.  Reference  to  original  instru- 

92.  Formal  parts.  ments    and   private   memo- 

93.  The  caption.  randa. 

94.  Arrangement  of  the  abstract.  101.  Abbreviations. 

95.  Synopsis  of  instruments.  102.  Letter  press  copies. 

96.  Fullness  of  narration.  103.  Concluding  certificate. 

97.  Instruments   shown   for   ref- 

erence. 

§  89.  Generally  Considered.  Examinations  of  title  in 
the  United  States,  which  are  usually  prepared  by  professional 
examiners,  do  not,  as  a  rule,  disclose,  except  inferentially,  any 
matter  or  thing  affecting  title  save  what  appears  of  record, 
and  searches  are  mainly  restricted  to  the  public  records  of  the 
county.  Ordinarily  this  is  sufficient,  and  a  careful  search 
will  reveal  all  that  is  necessary  to  a  proper  estimate  of  the  title, 
and  fully  protect  intending  purchasers.  In  England,  where 
the  abstract  is  prepared  from  original  documents,  it  is  customary 
to  give  a  far  wider  range  to  the  examiner's  efforts  and  to  include 
not  only  the  material  parts  of  deeds,  wills,  etc.,  but  of  records 
and  private  acts  of  Parliament,  and  even  of  public  acts  passed 
for  private  purposes,  which  might  in  any  wise  implicate  or 
affect  the  title ;  and  to  these  are  added  such  facts  as  fill  up  the 
interval  of  title,  as  descents,  deaths,  marriages,  births,  burials 
and  other  circumstances  generally  called  matters  in  pais,1  and 
when  it  is  necessary  to  prove  a  pedigree,  as  where  a  descent 
occurs  in  the  course  of  the  abstract,  in  the  absence  of  better  evi- 
dence the  examiner  has  recourse  to  wills  of  relatives,  extracts 
from  parish  books,  from  family  bibles,  and  even  from  tomb- 

l  1  Prest.  on  Abstracts,  43. 

101 


102  ABSTRACTS   OF   TITLE. 

stones.2  Our  system  of  registration,  of  probate  proceedings, 
and  of  judicial  inquiry  and  determination,  and  the  legal  effect 
thereof,  renders  the  English  examiner's  methods  useless  to  a 
large  extent  in  the  United  States,  yet  it  can  not  be  denied  that 
opportunities  frequently  occur  for  a  judicious  breach  of  the 
conventional  observance  of  record  evidence  only,  and  for  the  in- 
troduction of  what  may  properly  be  called  matters  in  pais.  A 
number  of  instances  of  this  kind  will  be  found  noted  on  the  suc- 
ceeding pages  of  this  book. 

§  90.  Extent  of  the  Search.  An  examination,  upon  its 
face,  purports  to  show  the  course  of  title  from  a  definite  date 
to  another  definite  date,  and  the  fair  and  reasonable  import 
of  the  undertaking  is,  that  the  examiner  has  made  a  full  and 
true  search  relative  to  the  title  during  that  period  and  has 
noted  on  the  abstract  every  transfer,  or  other  matter,  affecting 
the  same,  actually  made  and  entered  of  record  between  those 
dates.  He  is  under  no  duty,  however,  to  inquire  into  the  ex- 
istence of  any  judgments  entered,  or  conveyances  recorded,  prior 
to  the  date  mentioned  as  the  commencement  of  the  search, 
neither  is  he  required  to  ascertain  or  certify  as  to  any  lien  aris- 
ing under  any  such  prior  judgment,  although  the  same  may 
have  first  attached  and  become  operative  after  that  time  by 
reason  of  the  fact  that  the  judgment  debtor  then  first  acquired 
title  to  the  premises ;  nor  is  he  bound  to  inquire  or  state  whether 
the  title  vested  in  any  grantee,  during  the  period  covered  by 
the  examination,  was  affected  by  any  prior  conveyance  or  any 
estoppel  growing  out  of  any  covenants  therein.3 

It  must  be  obvious,  however,  that  an  examination  made  in 
strict  conformity  to  the  foregoing  will  in  many  instances  defeat 
the  very  object  of  the  search,  and  hence  it  is  customary  to  show 
subsisting  tax  and  judgment  liens,  even  though  accruing  prior 
to  the  date  of  the  commencement  of  the  examination,  and,  ex- 
cept in  case  of  continuations,  an  abstract  deficient  in  this  re- 
spect should  be  rejected  by  counsel,  as  no  safe  opinion  can  be 

2  Brqwn's  Law  Diet.  5.  278 ;  and  see,  Ely  v.  Wilcox,  20  Wis. 

3  Wakefield   V.  Chowen,   26  Minn.       523;  State  v.  Bradish,  14  Mass.  2f>6; 
379;  Dodd  v.  Williams,  3  Mo.  App.       Ford  v.  Unity  Church,  120  Mo.  498. 


COMPILING   THE   ABSTRACT.  103 

predicated  upon  it.  In  all  cases  where  a  lien  first  attaches  dur- 
ing the  period  covered  by  the  examination,  it  should  be  shown, 
whatever  may  have  been  its  inception,  and  any  departure  from 
this  rule  is  to  rob  the  abstract  of  its  character  of  a  trustworthy 
guide  and  reduce,  if  not  vitiate,  its  value  as  an  evidence  of  the 
true  state  of  the  title. 

In  many  localities  it  is  or  has  been  customary  to  dispense 
with  a  formal  abstract,  and  in  its  stead  the  examiner  merely 
"  certifies  the  title,"  as  being  "  good,"  "  bad  "  or  "  doubtful," 
in  an  individual  named,  basing  his  certificate  upon  his  personal 
examination  of  the  records.  This  is  merely  an  opinion  of 
title,  and  its  worth  depends  wholly  upon  the  learning,  ability, 
and  financial  responsibility  of  the  individual  rendering  it. 

Again,  while  the  examiner  may  present  a  synopsis  of  the 
deeds,  etc.,  it  is  simply  for  the  purpose  of  showing,  like  the 
English  abstract,  the  present  title  of  some  specified  person,  the 
chain  commencing  at  some  given  point  as  the  root.  In  a  case 
of  this  kind  unusual  care  is  required,  lest  a  prior  conveyance 
operating  by  way  of  estoppel,  may  not  defeat  the  title  shown. 
It  is  customary,  in  an  examination  similar  to  the  one  under 
consideration,  to  commence  with  a  deed  showing  title  in  ven- 
dor or  his  grantor,  and  thence  continuing  down  to  the  date 
of  the  certificate.  There  is  not  wanting  authority  to  support 
an  examination  of  this  character,  and  it  has  been  held  that  a 
deed  recorded  before  the  grantor  has  any  record  title  may  be 
safely  disregarded  in  examination  of  title,  under  the  system 
of  registration  and  notice  adopted  in  the  different  States  of 
the  Union ;  that  such  a  deed  would  not  be  constructive  notice 
to  any  innocent  purchaser ;  4  and  further,  that  a  purchaser 
finding  an  apparently  valid  title  of  record,  is  not  expected  to 
look  behind  it.5  The  rule,  however,  is  unsafe  and  does  not 
prevail  generally,6  and  counsel  before  passing  on  an  examina- 

4Dodd  v.  Williams,  3  Mo.  App.  14  Mass.  296;  Ely  v.  Wilcox,  20 
278;  and  see,  Ford  v  Unity  Church,       Wis.  523. 

120  Mo.   498;    Calder   v.   Chapman,  5  State  V.  Bradish,  14  Mass.  296. 

52  Pa.   St.   359 ;    State  v.   Bradish,  6  See  "  Estoppel,"  "  Notice "  and 

"  Registration." 


104  Abstracts  of  title. 

tion  purporting  to  show  no  more  than  above  stated,  should 
have  satisfactory  assurance  that  no  prior  deeds  exist  of  record, 
or  his  opinion  should  indicate  the  possible  defects  of  title  re- 
sulting therefrom. 

If  the  examiner  is  directed  to  commence  his  search  at  a  given 
period,  or  with  a  specific  event  in  the  devolution  of  title,  he  will, 
of  course,  discharge  his  whole  duty  by  a  true  showing  of  what 
has  transpired  since  that  time  or  event,  but  a  purchaser  will 
thereby  assume  a  risk. 

§  91.  Making  the  Chain.  Before  commencing  the  formal 
abstract  a  preliminary  sketch  should  first  be  mads  from  all  the 
indices.  This  sketch,  called  the  "  chain,"  is  simply  a  series 
of  brief  notes  of  all  conveyances,  incumbrances  and  liens  af- 
fecting the  property  under  consideration,  as  shown  by  the  tract 
index,  and,  where  the  original  entry  is  meager,  the  examiner 
uses  these  references  in  making  full  abstracts  of  the  instruments 
from  the  records.  It  also  shows  what  instruments  are  asso- 
ciated with  the  names  of  those  whom  the  tract  index  invests 
with  title,  that  appear  upon  the  irregular  index;  the  names  of 
all  persons  who  at  any  time  have  held  title  which  are  found  upon 
the  judgment  index ;  and  all  tax  sales  or  forfeitures  of  the  land 
in  question  as  shown  by  the  tax  index.  These  latter  are  then 
verified  by  comparison  with  the  records,  and  all  satisfactions  or 
redemptions  stricken  from  the  sketch.  The  instruments,  pro- 
ceedings, etc.,  are  then  numbered  and  arranged  in  the  order 
in  which  the  abstract  should  be  written,  and  furnish  a  refer- 
ence guide  for  this  portion  of  the  work. 

§  92.  Formal  Parts.  The  abstract  should  be  prepared  in 
a  neat  and  orderly  manner,  and  so  disposed  as  to  facilitate 
the  labor  of  counsel  in  passing  on  the  title.  A  formal  cap- 
tion should  apprise  the  reader  at  the  outset  of  the  subject  of 
the  examination,  while  the  different  searches  should  be  arranged 
under  classified  heads,  and  for  purposes  of  convenient  reference 
the  various  conveyances  and  statements  should  be  numbered 
consecutively  from  the  beginning.  The  result  of  the  search 
should  be  recapitulated  at  the  conclusion  by  a  certificate  cov- 
ering all  the  essential  features  of  the  examination.     The  formal 


COMPILING    THE    ABSTEACT.  105 

parts  should  be  brief,  yet  explicit,  and  drawn  with  great  care, 
particularly  the  examiner's  certificate,  for  it  is  this  which  im- 
parts to  the  abstract  its  value  as  evidence. 

§  93.  The  Caption.  The  object  of  the  caption  is  to  defi- 
nitely describe  the  subject  of  the  examination.  It  would  seem 
to  be  the  practice  of  Eastern  abstract  makers,  following  the 
English  precedents,  to  insert  here  the  name  of  the  person  for 
whom  the  search  is  made,  and  frequently,  to  describe  the  ab- 
stract itself  as  the  exemplification  of  the  title  of  some  particular 
individual.7  But  this  is  usurping  the  province  of  the  exam- 
ining counsel,  who  alone  should  say  where  and  in  whom  the 
title  rests,  and  that  only  after  a  careful  and  diligent  inquiry 
into  all  the  questions  raised  by  the  abstract,  both  directly  and 
inferentially.  The  work  of  the  examiner  is  to  present  to  coun- 
sel all  that  appears  of  record  concerning  a  specified  tract  of 
land;  no  more.  The  counsel  must  say  in  whom,  under  the 
application  of  legal  rules  and  principles,  the  title  rests,  or  is 
vested.  The  caption,  therefore,  should  consist  of  a  full  de- 
scription of  the  parcel  or  parcels  of  land  under  examination, 
and  the  time  from  which  the  search  is  made.  The  following 
is  the  form  of  an  ordinary  caption: 

EXAMINATION  OF  TITLE8 
to 
Lot  Five  (5)o/  Block  Four  (4)  of  Bond's  Subdivision  of  the 
North  East  quarter  of  Section  Twenty-Three  (23)  Town 
Thirty-Seven  (37)  North,  Range  Thirteen  (13)  East  of  the 
Third  Principal  Meridian;  except  the  South  one  hundred 
acres,  and  also  one  acre,  in  the  North  West  corner  of  East 
one  half  (Yz)  °f  said  quarter  section,  deeded  to  the  School 
Commissioners. 

Descriptions  of  platted  lands  are  frequently  confined  to  the 
record  title  of  the  plat,  which  fails  to  provide  a  full  designa- 

7  See  Curwen  on  Abstracts,  38;  ination."  The  former  is  the  Eng- 
Willard  on  Conveyancing,  551.  lish    method,   the   latter   more   fully 

8  Tf  desired  the  word  "  abstract "  expresses  the  idea  involved  and  ia 
may  be  employed  instead  of  "  exam-  in  common  use  in  this  country. 


106  ABSTRACTS    OF   TITLE. 

tion,  and  the  description  thus  employed  in  the  deeds  is  also 
used  in  the  caption  of  the  abstract.  When  such  is  the  case  it 
is  a  good  plan  to  further  indicate  the  location  of  the  property 
with  reference  to  the  original  division,  thus : 

Sub-Block  Three  (8),  of  Block  (If)  of  Sheffield's  Addi- 
tion to  Chicago,  Cook  County,  Ills. 

The  premises  in  question  are  located  upon  the  North  half 
of  the  North  East  quarter  of  Section  39,  Town  1/0  North,  Range 
11+  East  of  the  3d  Principal  Meridian. 

So  also,  it  may  happen  that  a  subdivision  is  laid  out  on 
several  parcels,  in  which  case  it  may  be  deemed  desirable  to 
show  the  particular  parcel  in  which  the  lots  under  examina- 
tion are  located.  The  caption  would  therefore  vary  a  little 
from  that  last  shown.     As  for  example: 

Lot  (1+)  in  Block  (2)  in  Rockwell's  Addition  to  Chicago, 
Cook  County,  Ills. 

Said  addition  is  laid  out  on  the  West  Half  of  the  North 
West  quarter  of  Section  18,  Town  39  North,  Range  11+  East 
of  the  3d  Principal  Meridian,  and  the  North  East  quarter  of 
Section  13,  Town  39  North,  Range  13  East  of  the  3d  Princi- 
pal Meridian. 

The  Lot  in  question  falls  within  the  North  East  quarter  of 
Section  13  aforesaid. 

When  the  early  stages  of  title,  prior  to  the  subdivision, 
are  shown,  the  foregoing  method  often  becomes  a  great  help 
to  counsel  in  examining  the  abstract. 

Should  the  examination  be  a  continuation  of  a  former 
search,  the  words  "  Continuation  of  "  may  be  placed  at  the 
beginning  of  the  caption,  preceding  the  word  "  Examination." 
If  desired  the  word  "  Abstract "  may  be  employed  instead  of 
"  Examination."  This  is  the  English  style  and  many  ex- 
aminers prefer  it. 

Where  the  examination  commences  at  the  source  of  title, 


COMPILING   THE   ABSTRACT.  107 

as  where  a  devolution  from  the  United  States  is  shown,  no 
announcement  of  the  time  from  which  the  search  dates  is  nec- 
essary, hut  when  any  intermediate  point  is  selected,  it  is  cus- 
tomary to  indicate  same.  This  is  accomplished  by  a  simple 
statement  of  the  fact  immediately  following  the  description, 
and  neatly  separated  from  what  precedes  and  follows  by 
dashes,  thus: 


Commencing  this  examination  Oct.  9,  1871. 


The  certificate,  when  properly  drawn,  will  always  show  the 
respective  dates  covered  by  the  examination,  but  many  ex- 
aminers prefer  to  indicate  these  facts  in  advance,  and  when  such 
is  the  case,  the  time  clause  should  read  so  as  to  show  the  termina- 
tion as  well  as  the  commencement  of  the  search.  When  the 
examination  is  partial,  and  does  not  come  down  to  include 
present  time,  this  method  is  strongly  recommended.  In  such 
a  case  the  time  clause  might  read  as  follows: 

Commencing  this  examination  Oct.  9,  1811,  and  bringing 
the  same  down  to  include  Sept.  7 ,  187 If. 

Where  the  examination  includes  several  distinct  parcels, 
and  the  search  does  not  cover  the  same  period  of  time  as  to 
all  of  the  parcels,  this  fact  should  be  indicated  at  the  start; 
thus: 

i 

As  to  Lots  13  to  16  inclusive,  in  Block  5,  we  bring  our  ex- 
amination down  to  include  March  3,  1886. 

As  to  the  remainder  of  said  premises  we  bring  our  examina- 
tion down  to  include  the  date  hereof. 

In  case  of  a  continuation  of  a  former  search  the  time  clause 
should  read  somewhat  as  follows: 

Last  examination  made  by  us  dated  March  S,  1879. 


108  ABSTRACTS   Off   TITLE. 

or  should  the  search  have  been  made  by  a  different  examiner, 

Last  examination  made  by  Handy,  Simmons  &  Co.,  dated 
June  7,  1880. 

It  may  be  that  the  examination  is  designed  to  show  only  a 
particular  title  antedating  the  actual  time  of  the  search.  In 
such  case  some  initial  statement  disclosing  the  fact  is  neces- 
sary to  avoid  confusion,  and  this  may  be  accomplished  by  some 
such  statement  as  the  following: 

We  bring  our  examination  down  to  include  the  title  to  said 
premises  acquired  by  Delbert  A.  Clithero  by  the  deeds  to  him 
herein  shown. 

It  sometimes  happens  that  the  client  desires  a  search  only 
from  some  particular  time,  and  selects  some  particular  instru- 
ment as  the  basis  of  his  title.  In  this  case,  the  instrument 
selected  should  form  the  initial  number  of  the  abstract,  and 
the  time  clause  should  read  substantially  as  follows: 

We  assume,  by  direction,  that  John  Smith  acquired  title 
to  the  fee  of  the  land  described  in  the  caption  hereto,  on  the 
10th  day  of  April,  1873,  by  the  instrument  shown  as  number 
one  of  this  examination. 

Frequently  the  examiner  will  be  called  upon  for  partial,  or 
special  examinations,  either  of  land  or  concerning  individuals, 
in  which  case  the  caption  should  explicitly  state  all  the  points 
covered  by  the  examination,  and,  if  necessary  for  greater  cer- 
tainty, negative  such  as  are  not;  as 

Special  Examination 

for 

Judgments  and  Pending  Suits  in  the  Circuit  and  Supe- 
rior Courts  of  Cook  County,  Illinois,  against  George  P.  Will- 


COMPILING    THE    ABSTRACT.  109 

iams  and  John  B.   Smith.     Judgments  against  John  Smith 

disregarded. 

Examinations  for  special  conveyances,  for  real  estate  stand- 
ing in  the  name  of  judgment  debtors,  for  taxes,  etc.,  should 
be  treated  in  the  same  general  manner. 

Where  the  examination  is  confined  to  the  elucidation  of  a 
single  issue,  it  becomes  more  properly  an  abstract  of  the  par- 
ticular point  under  consideration,  and  is  so  denominated;  as, 

Abstract 

of 
A   Tax  Title  to  in-lot  twenty-four,  of  the  original  plat  of 
the  village   of  Edgerton,   Green   county,   Wisconsin,   acquired 
under  and  by  virtue  of  a  sale  made  May  10,  1879,  for  the  taxes 
of  1878. 

§  94.  Arrangement  of  the  Abstract.  The  different 
conveyances  and  stages  of  title  are  usually  shown  in  chrono- 
logical order  so  as  to  present,  as  far  as  possible,  a  connected 
chain,  and  are  numbered  seriatim  from  the  beginning.  Many 
examiners  show  the  deeds  and  grants  collectively,  while  the 
mortgages  and  liens  are  grouped  together  in  the  same  man- 
ner under  a  classified  head.  This  arrangement,  though  widely 
used,  is  inconvenient  and  frequently  distracting  to  counsel. 
The  liens  and  incumbrances  when  connecting  title  should  be  set 
forth  in  regular  chronological  order  in  conjunction  with  other 
instruments,  and  releases  or  discharges  should  immediately 
follow  the  incumbrance  or  lien  which  they  purport  to  affect, 
irrespective  of  the  time  they  bear  date.  The  aim  of  the  ex- 
aminer should  be  to  present,  so  far  as  may  be,  the  course  of 
title  in  unbroken  sequence  through  whatever  forms  or  instru- 
mentalities it  may  pass.  Judgments  against  the  person,  me- 
chanic's liens,  taxes  and  tax  sales,  may  be  shown  after  the 
course  of  title  has  been  traced,  in  the  shape  of  appendices  and 
under  appropriate  heads.     Decrees,   judgments,   orders  affect- 


110 


ABSTRACTS    OF    TITLE. 


ing  the  land,  and  tax  deeds,  of  course  appear  in  regular  order 
in  the  body  of  the  abstract.  Official  deeds,  resulting  from 
execution  or  judicial  sales,  should  be  preceded  in  the  former 
case  by  the  judgment,  in  the  latter  by  the  special  proceedings 
and  decrees  upon  which  they  are  founded. 

As  a  further  aid  in  effecting  a  correct  and  systematic  ar- 
rangement of  the  instruments  shown  in  an  examination,  an 
illustration  in  the  form  of  a  chain  is  herewith  given.  This 
title,  while  it  would  present  but  few  difficulties,  is  yet  suffi- 
ciently intricate  to  explain  the  method. 


EXAMINATION  OF  TITLE 

to 
The  N.  E.  14  Sec.  10,  T.  1  N.,  E.  23  E. 


1. 

U. 

S. 

to  A.9 

Patent 

All 

Aug. 

1, 

1839. 

s. 

A. 

to 

B. 

Deed 

All 

Dec. 

15, 

1839. 

s. 

B. 

to 

C. 

Deed 

All 

June 

10, 

lSJk5. 

h. 

C. 
D. 

to 
to 

D. 
G. 

Deed 

All 

V2 

May 
June 

3, 
1, 

1850. 

5. 

Deed 

Und. 

1850. 

6. 

G. 
D. 

to 
to 

H. 
E. 

Deed 

Und. 

y2 

April 
July 

11, 

O 

1855. 

7. 

Deed 

Und. 

1852. 

8. 

E. 

to 

F. 

Deed 

Und. 

V2 

Sept. 

12, 

1853. 

9. 

F.  to  H. 
H.  to  M. 
State  to  I. 

Deed 

Und. 

V2 

All 
All 

April 

Oct. 

March 

lh 
8, 
1, 

1859. 

10. 

Deed 

1859. 

11. 

Tax  Deed 

1850. 

12. 

I. 

to 

J. 

Quit  Claim 

All 

Jan. 

2 

1851. 

13. 

J. 

to 

K. 

Deed 

All 

May 

15, 

1851. 

Ik. 

K. 

to 

L. 

Deed 

All 

Feb. 

26. 

1857. 

15. 

L. 

to 

M. 

Deed 

All 

Oct. 

8, 

1859. 

9  The  above  illustration  is  for  ar- 
rangement only ;  of  course,  in  com- 
piling the  abstract,  a  full  synopsis 


of  every  instrument  and  proceeding 
must  be  given. 


COMPILING    THE    ABSTRACT.  Ill 

16.  M.  to  N.  Deed  All       Nov.  1,  I860. 


Judgments. 


Tax  Sales. 


Examiner's  Certificate  of  Search. 

The  foregoing  sketch,  though  brief,  conveys,  in  some  meas- 
ure, an  idea  of  the  arrangement  of  a  chain  of  title.  From 
Nos.  1  to  4  the  divestiture  of  the  title  from  the  government 
and  its  devolution  through  mesne  conveyances  is  regular  and 
without  interruption.  At  No.  5  the  ownership  of  the  land 
changes  from  severalty  to  common,  an  undivided  one  half  being 
vested  by  No.  6  in  H.  As  H,  in  the  devolution  of  title,  sub- 
sequently becomes  invested  with  the  remaining  one  half,  a 
stop  should  be  made  at  this  point  and  the  title  to  such  remain- 
ing one  half  traced  until  it  again  becomes  merged  in  H.  This 
is  accomplished  in  No.  9.  The  reunited  title  should  then  be 
distinguished  from  what  has  preceded  by  a  short  dash,  and  the 
next  conveyance,  No.  10,  should  form  another  initial  point, 
from  which,  if  no  other  obstacle  intervened,  the  chain  would 
be  continued.  But  during  the  devolution  of  the  original  title  a 
tax  title  has  been  created  by  a  grant  from  the  State.  This 
title  is  independent  and  adverse,  and  if  there  should  be  no 
subsequent  merger  would  be  properly  shown  after  the  original 
title  had  been  fully  traced.  In  the  illustration  this  title  is 
afterward  acquired  by  M,  therefore,  as  he  now  owns  the  original 
title,  such  tax  title  should  at  this  point  be  traced  to  him.  A 
broad  dash  should  therefore  separate  the  chain  and  the  course 
of  the  tax  title  should  be  followed  until  M  receives  the  investure, 
which  is  accomplished  in  No.  15.  Here  the  broad  dash  is 
again  employed  to  separate  the  tax  title  from  the  original,  and 
the  full  and  reunited  course  is  continued  in  the  deed  from  M 
to  N.  The  judgments  and  tax  sales,  if  any,  follow  as  special 
appendices. 

An  abstract  thus  arranged  greatly  lessens  the  labors  of  coun- 


112  ABSTRACTS    OP    TITLE. 

sel  in  preparing  an  analysis,10  and  by  reason  of  its  coherency 
presents  most,  if  not  all,  of  its  salient  features  on  first  perusal. 

§  95.  Synopsis  of  the  Instruments.  In  England,  ab- 
stracts are  prepared  after  a  uniform  system  which  has  long 
been  observed  by  the  conveyancers  of  that  country,  and  the  im- 
press of  which  is  plainly  discernible  in  many  portions  of  the 
United  States.  It  is  very  methodical  and  precise,  and  in  view 
of  the  differences  in  the  sources  of  information,  as  well  as  the 
information  itself,  and  of  the  effect  which  many  of  the  matters 
there  required  to  be  shown  have  upon  title,  is  perhaps  highly 
conducive  to  the  end  desired,  yet  after  all  it  is  more  a  matter 
of  precedent  and  the  observance  of  established  forms  than  of 
real  utility.  Should  the  taste  of  the  examiner  so  incline,  or 
counsel  so  direct,  the  instruments  may  be  displayed  after  the 
English  model,  which  is,  briefly,  as  follows: 

The  abstract  is  usually  written  on  "  brief  "  paper,  which  is 
divided  by  three  real  or  imaginary  longitudinal  lines,  thus 
leaving  a  page  with  four  divisions  which  are  technically  known 
as  ';  margins."  The  outer,  or  left  hand  margin,  is  left  clear 
for  the  person  investigating  the  title  to  insert  any  note  or  in- 
tended inquiry  which  may  suggest  itself  during  the  perusal 
of  the  abstract,  or  it  may  sometimes  be  used  by  the  abstract 
maker  for  the  insertion  of  a  note  or  statement  necessary 
to  a  proper  display  of  the  title.  The  caption  is  written 
from  the  third  margin.  The  description  of  the  parties,  as  well 
as  the  testatum,  is  usually  written  from  the  outer  margin.  The 
parcels,  that  is  the  descriptions  of  the  property,  are  invariably 
set  out  from  the  third  inner  margin.  The  habendum  is  most 
frequently  written  from  the  second  inner  margin,  while  the 
recitals  are  almost  invariably  written  from  the  first  inner  mar- 
gin.11 This  method  undoubtedly  possesses  some  advantages, 
the  chief  merits  being,  that  it  enables  counsel  at  a  glance  to 

10  As  an  instance,  an  analysis  of  As  this  matter  receives  frequent 
the  title  shown  by  the  above  ab-  allusions  in  different  parts  of  this 
stract  is  given  in  Chap.  XXXII  of  work,  an  example  illustrating  the 
this  work.  methods  will  be  found  in  the  appen- 

1 1  Seaborne  on  Vendors,  4  et  seq.  dix. 


COMPILING    THE    ABSTKACT.  113 

refer  to  any  portion  of  an  instrument  without  having  his  at- 
tention diverted  to  other  parts,  and  the  facility  it  affords  for 
the  comparison  of  instruments  and  the  determination  of  their 
operation  and  effect  when  construed  in  relation  to  each  other; 
but  aside  from  this  it  is  difficult  to  perceive  any  particular  in- 
ducement for  the  adoption  of  the  marginal  system. 

The  form  of  synopsis  recommended  by  the  writer,  and  of 
which  the  succeeding  illustrations  afford  numerous  examples, 
is  exceedingly  simple  and  unartificial.  It  consists  merely  of 
an  arrangement  not  unlike  that  used  in  preparing  the  plead- 
ings in  a  law  suit;  that  is,  a  caption  reciting  the  parties  to 
the  transaction,  or  the  nature  of  the  transaction  itself  in  prac- 
ticable cases,  followed  by  a  plain  narration  of  whatever  matter 
may  be  deemed  essential.  The  caption,  for  greater  ease  in 
perusing  and  comparing,  is  placed  at  the  left  hand  side  of  the 
page  and  united  with  a  bracket,  or,  if  desired,  may  be  written 
over  and  across  the  narration  which  follows.  All  the  recitals 
are  written  across  the  entire  page  and  not  otherwise  distin- 
guished from  each  other  than  by  being  thrown  into  paragraphs. 
In  case  of  notes  a  slight  indentation  is  desirable  to  more  fully 
distinguish  them  from  other  matter,  but  with  this  exception  all 
writing  had  better  be  made  from  the  ruled  margin  of  the  sheet, 
ordinary  legal  cap  being  used  for  the  purpose.  This  method 
has  long  been  pursued  by  the  abstract  makers  of  the  West, 
where  it  is  conceded  the  most  perfect  and  finished  abstracts 
are  now  produced,  and  has  met  the  general  approbation  of  the 
legal  profession. 

§  96.  Fullness  of  Narration.  From  what  has  been  said, 
it  will  appear  that  a  full  and  complete  narration  of  every  in- 
strument, proceeding  or  act,  shown  in  the  abstract,  is  neces- 
sary to  a  complete  and  perfect  examination.  A  thing  of  no 
seeming  moment  to  the  examiner,  may,  to  the  trained  eye  of 
counsel,  be  a  circumstance  of  vital  importance.  "While  the 
abstract  is  not  intended  to  be  a  copy  of  what  is  shown  it  should 
yet  be  sufficient  to  impart  all  the  essential  information  that 
might  be  obtained  from  a  perusal  of  the  original  documents. 
It  is  not  necessary,  save  in  exceptional  cases,  that  it  should  be 


114  ABSTRACTS    OF    TITLE. 

a  literal  transcript  of  every  point  or  matter  deemed  material 
or  essential,  for,  on  the  contrary,  the  majority  of  these  mat- 
ters will  be  more  clearly  and  pertinently  presented  by  a  brief 
and  succinct  statement  that  shall  fully  cover  the  particular 
point,  divested  of  its  redundancy  and  unnecessary  verbiage. 
The  object  of  the  abstract  is  to  economize  time,  and  to  enable 
the  reader  to  survey  the  entire  course  of  title,  comparatively, 
at  a  glance.  Hence,  long  and  technical  provisions  should,  when- 
ever practicable,  be  digested  so  as  to  show  their  pith  and  sub- 
stance, which,  in  many  instances,  may  be  done  without  in  any 
manner  impairing  their  significance.  The  faculty  of  condensa- 
tion should  be  cultivated  by  all  who  would  aspire  to  excellence 
in  the  preparation  of  abstracts,  for  nothing  more  distinguishes 
the  accomplished  and  expert  examiner,  and  the  work  is  always 
duly  recognized  and  appreciated  by  counsel. 

These  remarks,  however,  apply  mainly  to  the  general  and  not 
to  the  special  incidents  of  instruments,  for  these  latter,  as  a  rule, 
can  best  be  presented  in  the  language  of  the  originals,  and  to 
avoid  error  or  omission  should  be  so  shown.  Thus,  a  general 
recital  is  far  better  presented  as  a  terse  and  succinct  statement, 
but  provisions  peculiar  to  the  instrument  must  be  fully  stated 
or  literally  copied,  for  it  must  ever  be  borne  in  mind,  that 
where  one  is  chargeable  with  the  notice  of  the  record  of  an 
instrument,  he  is  equally  affected  with  notice  of  all  material 
matters  contained  in  such  instrument.12 

§  97.  Instruments  Shown  for  Reference.  While  the 
primary  purpose  of  an  abstract  is  to  show  only  the  course  of 
title  to  a  specified  tract,  yet,  in  order  more  fully  to  illustrate 
such  title,  or  to  enable  counsel  to  obtain  better  views  with 
respect  thereto,  it  is  not  an  infrequent  practice  to  exhibit,  for 
the  purpose  of  reference,  instruments  which  connect  with  the 
title  collaterally.  The  practice  is  fully  sanctioned  by  the  usage 
of  the  best  examiners  and  such  collateral  matters  are  often 
of  high  importance  considered  in  connection  with  the  title 
shown.  Whenever  it  may  be  deemed  desirable  or  expedient 
to  show  such  instruments  they  should  immediately  follow  the 

i2Kerfoot  v.  Cronin,  105  111.  609. 


COMPILING    THE   ABSTRACT.  115 

deeds  they  affect  or  explain  and  should  be  preceded  by  the 
following  note : 

The  following  deed  is  shown  for  reference  only. 

It  is  well,  also,  when  reference  deeds  are  shown,  to  append  a 
note  in  proper  cases  showing  that  the  subsequent  development  of 
the  title  thereby  conveyed  is  not  contemplated,  thus : 

Note. — Title  of  John  Smith  and  his  grantees  not  followed  out. 

§  98.  Examiner's  Notes.  The  examples  in  the  preced- 
ing paragraph  are  notes  of  explanation.  It  is  the  custom  of 
many  examiners  to  freely  intersperse  through  the  examination 
their  own  comments  and  observations  relative  to  matters  therein 
stated.  When  properly  inserted  these  notes  are  of  much  ad- 
vantage in  arriving  at  a  proper  estimate  of  the  instruments 
shown,  and  in  determining  their  character  and  the  degree  of 
importance  to  be  attached  to  them.  From  his  peculiar  position, 
knowledge  of  the  records,  and  control  of  indices  and  references, 
the  examiner  is  frequently  in  possession  of  information,  which, 
though  not  strictly  essential  to  the  abstract,  and  in  a  certain 
sense  aliunde,  is  yet  a  valuable  contribution  and  may  obviate 
many  perplexing  questions  that  might  otherwise  arise  on  its 
perusal  by  counsel.  This  information  should  be  appended  in 
the  shape  of  explanatory  notes.  They  should  be  brief,  concise, 
and  confined  strictly  to  a  statement  of  facts.  Queries,  save 
in  rare  instances,  opinions,  and  desultory  suggestions,  only 
serve  to  confuse  and  distract.  When  alluding  to  any  particular 
instrument  or  proceeding,  they  should,  when  practicable,  im- 
mediately follow  the  particular  conveyance  referred  to,  or 
should  this  be  undesirable,  may  be  placed  at  the  end  of  the 
abstract,  immediately  before  the  certificate,  by  way  of 
appendix.  It  is  not  a  good  plan  to  encumber  the  abstract 
with  a  profusion  of  notes,  yet  in  no  case  where  the  matter 
Stated  is  important,  or  necessary  to  a  better  understanding  of 
what  lias  preceded  or  may  follow,  should  they  be  omitted,  and 


116  ABSTRACTS    OF    TITLE, 

when  doubtful  as  to  the  propriety  of  their  insertion,  it  is  better 
to  err  on  the  side  of  safety,  even  at  the  cost  of  being  prolix. 

§  99.  Irregular  Instruments.  In  compiling  the  ab- 
stract the  irregular  index  should  be  as  carefully  consulted 
as  the  index  of  lands,  and  not  only  should  this  index  show 
every  independent  instrument  of  an  irregular  character,  but 
also  references  to  other  instruments  duly  posted  in  the  tract 
index,  when  by  reason  of  anything  therein  contained  or  ap- 
pended thereto,  light  may  be  shed  upon  examinations  in  which 
they  do  not  properly  appear.  Thus,  an  affidavit  of  pedigree, 
domestic  condition,  etc.,  may  be  appended  to  a  deed  of  specific 
lands  which  is  duly  posted  in  the  tract  index,  but  as  this  affi- 
davit may  have  an  equally  important  bearing  upon  the  title  to 
other  lands,  it  must  also  be  posted  in  the  irregular  index  for 
easy  reference. 

§  100.  Reference  to  Original  Instruments  and  Priv- 
ate Memoranda.  An  abstract  is  compiled,  in  the  usual  course, 
from  the  face  of  the  record,  and  purports  to  show  all  essential 
facts  thereby  disclosed.  If  incorrect  statements  appear  upon 
the  record  they  must  also  appear  upon  the  abstract.  The  ex- 
aminer should  not  assume  to  correct  the  record.  But,  as  will 
often  be  the  case,  if  the  examiner  is  satisfied  that  a  misstatement 
has  been  made,  or  that  the  recording  officer  has  failed  to  properly 
transcribe  the  contents  of  a  document  left  with  him  for  record, 
it  is  the  duty  of  the  examiner  to  apprise  his  client  of  such  error, 
and  that  too  upon  the  face  of  the  abstract  he  has  compiled. 
This  will,  in  some  instances,  necessitate  a  reference  to  the 
original  instrument  and  when  the  fact  of  an  error  lies  within 
the  examiner's  knowledge  this  is  a  proper  way  of  presenting  it. 

The  usual  and  better  way  to  show  a  matter  of  this  kind  is 
by  a  note  appended  to  the  abstract  of  the  erroneous  document 
in  this  manner: 

Note. —  The  original  document,  now  in,  our  hands,  which  is 
recorded  as  above  in  Booh  512  of  Records,  page  197, 
shows  the  signature  of  said  grantor  as  "Harriet  Jones  " 
and  not  "  Hariet  Janes." 


COMPILING    THE    ABSTEACT.  117 

So,  too,  if  the  original  entry  books,  made  from  the  original 
documents  as  they  were  filed,  shows  a  difference  in  names  or 
description  a  reference  thereto,  in  the  same  manner  as  the  fore- 
going, is  proper. 

§  101.  Abbreyiations.  In  preparing  his  notes  and  ar- 
ranging his  books,  the  examiner  will  find  his  labors  greatly 
accelerated  by  the  use  of  abbreviations.  These  may  include 
not  only  the  commonly  accepted  initials  for  the  points  of  the 
compass,  different  classes  of  conveyances,  governmental  divi- 
sions of  land,  etc.,  but  all  such  abbreviated  forms  or  contrac- 
tions as  to  himself  may  have  a  definite  meaning.  In  the  ab- 
stract, however,  everything  should  be  written  out  in  full,  for  it 
can  not  be  known  into  whose  hands  it  may  come,  and  arbitrary 
forms  and  abbreviations  that  to  the  examiner  appear  extremely 
lucid  may  cause  much  annoyance  and  inconvenience  both  to 
counsel  and  non-professional  readers.  On  the  other  hand,  the 
examiner  should  never  attempt  to  supply  the  deficiencies  of  the 
conveyancer  by  writing  out  in  the  abstract  his  abbreviations  in 
the  deed,  but  whenever  such  occur  the  better  way  is  to  make  a 
literal  transcription  of  the  abbreviated  words  or  passages,  and 
certify  same  with  quotation  marks  thus :  "  Sec.  14,  T.  39, 
Range  13  E."  The  question  of  interpretation  will  then  rest 
where  it  rightfully  belongs  —  with  counsel  who  is  to  pass  on  the 
title.  A  deed  is  not  invalid  because  of  the  description  of  the 
lands  being  in  figures  or  well  understood  abbreviations,13  but 
abstracts  which  are  unintelligible  without  the  aid  of  some  proof 
to  explain  the  meaning  of  abbreviations  and  initials  used  in 
them,  when  permitted  to  be  used  as  evidence,  are  insufficient 
in  themselves  to  establish  title.  14. 

§  102.  Letter  Press  Copies.  No  abstract  or  examination 
should  be  permitted  to  leave  the  maker's  hands  until  a  dupli- 
cate letter  press  copy,  or  its  equivalent,  has  first  been  obtained. 
The  examiner  should  always  have  in  his  own  possession  the 
verification  of  his  work  as  a  matter  of  self-protection,  while  in 
case  the  volume  of  business  passing  through  the  offices  of  regis- 

13  Harrington   v.   Fish,    10  Mich.      415;  Moseley  v.  Mastin,  37  Ala.  216. 

14  Weeks  v.  Dowing,  30  Mich.  4. 


118  ABSTRACTS    OF    TITLE. 

tration  is  such  as  to  preclude  making  full  minutes  in  the  first 
instance,  the  copies  thus  obtained  will  supply  the  deficiency, 
and  be  available  for  future  examinations  of  the  same  property, 
without  the  labor  of  again  referring  to  the  records.  This  may 
be  accomplished  by  noting  on  the  tract  index  opposite  the 
reference  of  the  instrument  in  question  the  volume  and  page 
of  the  copy  book  on  which  the  full  abstract  is  preserved. 

§  103.  Concluding  Certificate.  The  result  of  the  exami- 
ner's labors  should  be  summed  up  in  conclusion,  by  a  brief 
recapitulatory  and  explanatory  certificate,  embodying  the  es- 
sential features  of  the  search.  Its  extent  is  optional  with  the 
examiner,  but  it  should,  to  give  stability  to  the  abstract,  cover 
his  searches  in  the  offices  of  registration,  the  courts,  and  de- 
positories of  records  relative  to  taxation,  these  three  sources 
of  information  furnishing  nearly  all  the  exidence  required  in 
passing  on  the  sufficiency  of  the  title.  It  should  be  certain  in 
its  statements,  leaving  nothing  to  implication,  and  contain  no 
more  than  is  developed  by  actual  investigation.  If  the  ex- 
amination is  made  from  the  records  it  should  so  state,  enumer- 
ating the  different  classes  examined,  or  describing  the  offices 
or  depositories  from  which  the  information  was  obtained,  but 
where  it  is  made  from  indices,  kept  by  the  examiner,  it  is  usual 
to  certify  from  such  indices,15  which  is  a  much  safer  plan  than 
to  certify  from  the  records.  It  should  be  signed  by  the  ex- 
aminer and  dated,  such  date  being  usually  the  date  of  the  ex- 
amination. The  annexed  form  of  certificate  will  cover  the 
points  investigated  in  an  ordinary  search : 

15  As    a    further    precaution    the       of  which  the  following,  taken  from 
client  is   usually  required   to   make       actual  practice,   is   an  example: 
a  specific  order,  stating  his  desires, 

No 

ORDER  FOR  EXAMINATION  OF  TITLE. 


Chicago, 188 

HADDOCK,  VALLETTE  &  RICKCORDS, 

Make  an  examination,  according  to  your  Indexes  to  the  Records  in  Cook 
County,   Illinois,   of   deeds,   judgments   and   tax   sales,   of  the  title  to  the 
following  described  land,  in  Cook  County,  Illinois: 
(Here  insert  the  description  of  the 


COMPILING    THE    ABSTRACT.  119 

We  have  examined  our  Indexes  to  records  in  Cook  count)/, 
Illinois,  and  find: 

No  conveyances  of  the  land  described  in  the  caption  hereto, 
executed  by  any  of  the  parties  named  herein  as  grantor  or 
grantee,  shown  thereby  to  have  been  recorded  in  the  Recorder  s 
office  of  said  Cook  county,  Illinois,  since  January  25,  1875, 
and  prior  to  this  date,  and  no  proceedings  affecting  the  title  to 
said  premises  had  in  any  of  the  courts  of  record  of  said  county, 
except  as  shown  on  the  ten,  (10)  preceding  sheets.16 

No  judgments  rendered  in  any  court  of  record  in  said  Cook 
county,  Illinois,  against  John  M.  Smith  since  October  25, 
1872,11  and  prior  to  March  2,  1880  18  nor  against  William 
Thompson  since  October  25,  1872,  and  prior  to  this  date,  which 
are  a  lien  on  said  premises  [or  which  we  consider  liens  on  said 
premises]. 

Note. —  No   examination   made   for  judgments  against   John 
Smith,  nor  against  John  Smith  with  middle  initial  other 
than"M."  " 
No  taxes,  or  tax  sales,  or  forfeitures  of  said  premises,  re- 
maining unredeemed  or  uncanceled  of  record  (except  as  shown). 

Haddock,  Vallette  &  Rickcords, 

Examiners. 
Chicago,  October  25,  1882. 

property. )    

( Signed ) 


No Street. 


16  Although    the     examiner    may  lien    only    exists    for    seven    years, 

only   certify  that  he   finds   no   con-  hence,  with  reference  to  the  date  of 

veyances,   yet  this   is   equivalent  to  the    certificate,    October    25,     1875, 

a   statement   that   none   exist.     Mc-  would  have  been  a  proper  date  from 

Coraher  v.  Commonwealth,  5  Watts  which  to  certify  judgments,  but  in 

&  S.   (Pa.)    21.  a  majority  of  the  States  the  period 

i"T!iis  date  has  reference  only  to  is   ten  years,   which   corresponds   to 

the    time    from    which    a     personal  the  illustration  above  given. 

judgment   is   a   lien    on    real    estate  18  This   would   be  the   date   when 

and    not    to    the    commencement    of  John    M.    Smith     disposed    of    the 

the    examination.     In    Illinois    the  title,    and    hence    no    examination 


120  ABSTRACTS    OP    TITLE. 

If  the  examination  commences  with  the  assumption  of  title 
in  a  given  person,  the  certificate  should,  for  the  better  protec- 
tion of  the  examiner,  specify  such  person  by  name  and  the 
statement  of  conveyances  might  read  something  like  the  fol- 
lowing : 

No  conveyances  of  the  land  described  in  the  caption  hereto, 
executed  by  John  M.  Smith,  shown  thereby  to  have  been  re- 
corded in  the  recorder's  office  of  said  Cook  county,  Illinois, 
since  Jan.  25,  1875,1Q  and  none  by  those  who  derived  title 
through  said  Smith,  named  in  the  foregoing  examination  as 
grantor  or  grantee,  etc. 

Where  instruments  have  been  shown  for  reference  only,  or 
where  under  the  general  caption  deeds  are  exhibited  of  par- 
cels which  do  not  constitute  any  part  of  the  lands 
in  question,  no  necessity  exists  for  following  the  title  of  such 
parcels  or  noting  its  subsequent  devolution ;  as  where  a  Railroad 
right  of  way  intersects  a  division  or  tract  of  land.  It  is  ad- 
visable, however,  to  call  attention  to  this  fact,  either  by  a  note 
following  the  abstract  of  such  deeds  or  by  a  clause  in  the  final 
certificate,  and  such  mention,  in  either  case,  may  read  some- 
what as  follows : 

No  examination  for  conveyances  by  or  judgments  against  the 
Illinois  and  Wisconsin  Railroad  Company  or  its  grantees. 

Where,  in  a  continuation,  no  conveyances  are  shown,  there 
having  been  no  change  of  title  since  the  last  examination,  the 
statement  as  to  conveyances  may  simply  recite  this  fact,  or,  if 
desired,  and  this  is  the  better  way,  a  special  certificate  may  be 
made  with  respect  to  the  record  owner  of  the  land,  as  shown 
by  the  last  examination,  and  the  holders  of  such  incumbrances 
as  may  appear  thereon ;  thus : 

would  be  made  concerning  him  after  tation,    which,    in   the    example,    is 

that      date.      William       Thompson,  ten  years. 

though    only   holding    title   a    little  1 9  The  date  of  the  assumption  of 

over  two  years,   must  yet  be   certi-  title     and     commencement     of     the 

fied,    as    against    judgments,    for    a  search. 

period  equal  to  the  statutory  limi- 


COMPILING    THE   ABSTEACT.  121 

No  conveyances  of  the  land  described  in  the  caption  hereto 
executed  by  John  Brown20  or  by  James  Smith/1  mortgagee, 
shown  thereby,  etc. 

Where  two  or  more  parcels  form  the  subject  of  the  examina- 
tion and  the  caption,  in  technical  parlance,  is  a  "  double  header," 
if  the  examination  purports  to  be  from  different  dates  as  to 
each  parcel  the  fact  must  find  appropriate  mention  in  the  cer- 
tificate, as  per  example. 

No  conveyances  of  the  land  first  described  in  the  caption 
hereto,  executed  by  any  of  the  parties  named  herein  as  grantor 
or  grantee,  shown  thereby  to  have  been  recorded,  etc.,  since 
June  10,  1868,  except  as  noted. 

No  conveyances  of  the  land  secondly  described  in  the  caption 
hereto,  executed,  etc.,  since  March  1,  1870,  except  as  noted. 

In  continuations,  when  no  tax  sales  have  occurred  during 
the  period  covered  by  the  search,  say: 

No  tax  sales  had  since  Dec.  10,  1903.  2Z 

Of  late  years  it  has  become  customary  to  certify  with  re- 
spect to  special  assessments  and  when  the  land  in  question  is 
located  in  a  city  this  is  an  important  matter.  When  certify- 
ing special  assessments  at  any  time,  say: 

No  confirmed  special  assessments  remaining  unpaid,  which 
we  consider  liens  on  said  premises.      (Except  as  shown.) 

When  certifying  special  assessments  since  the  date  of  the 
last  examination,  say: 

20  The  record  owner  as  shown  by  22  The  date  of  the  last  examina- 
the  last  examination.                                  tion. 

21  The  encumbrancer  as  shown  by 
the  last  examination. 


122  ABSTRACTS    OF    TITLE. 

No  special  assessments  confirmed  since  January  15,  190 %, 
remain  in  (/  tin  paid,  which  we  consider  liens  on  said  premises. 
(Except  as  shown.) 

In  the  foregoing  examples  the  abstracts  are  supposed  to  have 
been  compiled  from  the  records  or  the  examiner's  indices,  and 
r.re  what  are  termed  "  original  examinations."  Not  infre- 
quently, however,  the  examiner  is  called  upon  to  prepare  com- 
pilations from  former  examinations,  being,  in  effect,  digests 
of  the  title  to  particular  tracts  shown  in  such  original  examina- 
tion in  a  general  way  with  other  lands.  While  the  practice  is 
not  recommended  there  will  yet  be  many  cases  in  which  it  may 
be  profitably  followed,  and,  when  this  is  done,  the  concluding 
certificate  nhould  specifically  show  the  course  pursued  and 
verify  the  correctness  of  the  compilation.     Thus: 

The  foregoing  Examination  of  Title  to  the  land  described 
in  the  caption  hereto,  is  a  compilation  from  the  following  sev- 
eral examinations,  including  the  land  in  question,  heretofore 
made  by  us,  viz.: 

To  the  West  half  of  the  South  East  quarter  of  Section  Ten, 
Town  Thirty-nine,  North,  Range  Fifteen,  East  of  the  Third 
Principal  Meridian,  dated  April  22,  1869. 

To  the  same  land  deled  March,  1,  1890. 

And  we  do  certify  that  same  is  a  true  and  correct  compilation 
from  said  several  examinations,  including  all  conveyances  of 
the  land  described  in  the  caption  hereto,  made  by  the  parties 
grantors  or  grantees  named  therein  and  shown  thereby  to  have 
been  recorded  in  the  Recorder  s  office  of  Cook  county,  Illinois, 
prior  to  the  dates  of  record  of  the  deeds  by  them  respectively, 
up  to  and  including  March  10,  1889.23 

In  like  manner  the  examiner  may  be  called  upon  to  fill  a  gap 
in  the  history  of  the  title.  While  the  caption  should  show 
this  fact,   in  the  manner  heretofore  indicated,   the  certificate 

23  This  is  the  date  to  be  covered    by   the    search    and    from    which   a 
continuation  would  be  made. 


COMPILING    THE    ABSTRACT.  123 

should  also  be  made  with  special  reference  to  it  and  the  recitals 
of  conveyances,  judgments,  etc.,  should  all  be  qualified  by  the 
statement, 

And  prior  to  June  10,  1810, 

or  words  of  similar  import  which  clearly  mark  the  time  of  the 
termination  of  the  search.  The  certificate  should,  of  course, 
bear  date  as  of  the  actual  time  it  was  made. 


CHAPTER  yill. 


INCEPTION   OF  TITLE. 


§  104. 

Preliminary  stages  of  title. 

§  117. 

Rights       acquired       under 

105. 

Inceptive     measures     under 

homestead  acts. 

the  U.  S.  land  laws. 

118. 

Desert  land  entries. 

106. 

Disposal  of  the   public   do- 

119. 

Tree   claims. 

main. 

120. 

Location  by  military   war- 

107. 

Public  land   sales. 

rant. 

108. 

Private  entry  of  lands. 

121. 

Land  scrip. 

109. 

Nature  of  title  conferred  by 

122. 

Swamp  land  grants. 

entry. 

123. 

School  lands. 

110. 

What  lands   subject  to  en- 

124. 

Internal      improvement 

try. 

grants. 

111. 

Pre-emption  entries. 

125. 

Land    grants    to    railroads. 

112. 

Nature       of        pre-emption 

126. 

Public  highways. 

rights. 

126a, 

,  Private  land  claims. 

113. 

Conveyances  before  entry. 

127. 

Who  may  acquire   title. 

114. 

C4raduation  entries. 

128. 

Inceptive   measures    in   the 

115. 

Donation  entries. 

abstract. 

116. 

Homestead  entries. 

§  104.  Preliminary  Stages  of  Title.  All  of  the  lands 
in  the  National  Territories,  not  appropriated  by  competent  au- 
thority before  they  were  acquired,  are,  in  the  first  instance, 
the  exclusive  property  of  the  United  States,  to  be  disposed  of 
to  such  persons,  at  such  times,  in  such  modes,  and  by  such  titles, 
as  the  Government  may  deem  most  advantageous  to  the  public. 
This  right  has  been  uniformly  reserved  by  solemn  compact 
upon  the  admission  of  new  States,  and  has  always  been  recog- 
nized and  scrupulously  respected  by  the  States  within  which 
large  portions  of  the  public  lands  have  been  comprised,  and 
within  which  much  of  these  lands  are  still  remaining. 
.:  The  system  adopted  for  the  disposition  of  the  public  lands 
embraces  the  interests  of  all  the  States,  and  proposes  the  equal 
participation  therein  of  all  the  people  of  all  the  States.  The 
system  is,  therefore,  peculiarly  and  exclusively  the  exercise  of 

124 


INCEPTION    OF    TITLE,.  125 

a  federal  power,  and  the  mode  of  its  accomplishment,  as  well 
as  the  evidences  or  muniments  of  right  which  it  bestows,  are 
all  the  work  of  federal  functionaries.  Neither  State  nor  Ter- 
ritory can,  in  any  manner,  interfere  with  the  primary  disposal 
of  the  lands.1 

Under  the  land  system  of  the  United  States,  there  are  a 
number  of  preliminary  or  inceptive  stages  of  title  before  its 
final  divesture  from  the  Government  and  consummation  in  the 
purchaser.  They  are  created  by  the  provisions  of  the  various 
acts  of  Congress  in  furtherance  of  the  development  of  the 
country,  and  their  recital  forms,  or  should  form,  the  initial 
statements  of  every  abstract,  whenever  the  examination  pur- 
ports to  show  a  connected  chain  of  title  from  its  source, 
the  general  Government.  Where  title,  as  in  the  East,  is  de- 
rived directly  from  the  State  as  the  original  proprietor,  these 
stages,  of  course,  do  not  appear,  nor  are  they  present  where 
title  is  deduced  from  anti-revolutionary  governments.  Titles 
derived  from  foreign  powers  prior  to  the  acquisition  of  the  soil 
by  the  United  States  are  respected  and  protected,  but  should 
be  confirmed,  when  inchoate,  by  special  act  or  in  conformity  to 
general  laws  on  that  subject,2  the  title  in  such  cases  dating 
from  the  confirmation,  though  relating  back  to  the  time  of  the 
cession  of  the  Territory  to  the  Government,  or  to  the  original 
grant.3 

§  105.  Inceptive  Measures  Under  the  U.  S.  Land  Laws. 
The  public  lands  are  sold  only  by  legal  divisions,  or  parcels, 
made  in  conformity  with  the  government  system  of  surveys,  and 
title  is  acquired  by  purchase  at  public  sale ;  by  ordinary  "  pri- 

1  Irvine  v.  Marshall,  61  U.  S.  (20  of  governments  which  held  sover- 
How.)   558.  eignty   over   the   territory    prior   to 

2  United  States  v.  King,  3  How.  its  acquisition,  and  confirmations 
773;  McMicken  v.  United  States,  97  have  been  extended  to  all  claims 
U.  S.    (7  Otto)    204.  founded    on    titles    in    form,    orders 

3 The  policy  of  the  United  States,  of  survey,  and  even  to  lands  to 
in  the  adjustment  of  such  titles  which  no  written  title  had  been  re- 
has  been  one  of  unexampled  liber-  corded,  where  the  claimants  had 
ality,  reserving  to  claimants  the  made  actual  settlements  before  the 
lands  to  which  they  asserted  titles  change  of  sovereignty, 
derived  from  the  lawful  authorities 


ll!6  ABSTKACTS    OF    TITLE. 

v&te  entry;"  and  by  the  various  other  methods  provided  in 
the  special  enactments  of  Congress  known  as  the  pre-emption 
acts,  homestead  acts,  etc.  These  laws  and  regulations  for  the 
disposal  of  the  public  domain  apply  only  to  individuals  who 
take  direct  from  the  United  States. 

Congress  has  also  at  different  times  by  special  legislation 
granted  to  the  States,  or  certain  of  them,  a  portion  of  the  pub- 
lic lands  to  aid  in  the  construction  of  great  internal  improve- 
ments; to  endow  schools  and  encourage  education;  and  for 
other  specific  purposes. 

These  various  measures,  for  the  most  part,  are  inceptive  and 
initiatory.  Though  creating  vested  interests,  and  granting 
equitable  rights,4  the  legal  title  still  remains  in  the  original 
grantor,5  to  pass  and  become  absolute  in  the  grantee,  only  on 
the  performance  of  prescribed  conditions  or  in  due  course  of 
law.  A  brief  review  of  the  preliminary  steps  to  acquire  title 
will  form  the  subject  of  the  succeeding  paragraphs. 

§  106.  Disposal  of  the  Public  Lands.  The  public  lands 
of  the  United  States  are  uniformly  brought  into  market  in  pur- 
suance of  a  system  which  originated  in  the  year  1796  6  and 
was  perfected  about  the  year  1820.  They  are  divided  into  two 
classes,  designated  respectively,  the  minimum  at  $1.25  per  acre, 
and  the  double  minimum  at  $2.50  per  acre,  and  may  be  pur- 
chased in  tracts  of  from  40  to  640  acres,  or  in  larger  bodies  if 
the  same  can  be  found  vacant.  In  cases  of  public  sale  or  pri- 
vate entry  the  law  requires  the  price  to  be  paid  in  cash  at  the 

4  Stark  V.  Starrs,  6  Wall.  (U.  S.)  initiative  for  establishing  a  system 
402.  for  the  disposal    of  the  then  exist- 

5  Carman  V.  Johnson,  20  Mo.  108;  ing  western  lands,  and  on  May  20, 
Hay  ward  V.  Ormsbee,  11  Wis.  3;  1785,  the  requisite  ordinance  for 
Wilcox  V.  Jackson,  13  Pet.  (U.  S.)  that  purpose  was  passed,  by  which 
498.  the  Board  of  Treasury  was  author- 

6  The  first  treaty  extinguishing  ized  to  dispose  of  the  surveyed  lands 
the  Indian  title  was  not  effected  in  the  western  territory,  commenc- 
until  1795,  but  not  a  year  had  ing  sales  at  New  York  or  Philadel- 
elapsed  from  the  definitive  treaty  phia,  with  power  to  adjourn  to  any 
of    peace    in    1783    before   the    Con-  part  of  the  United  States. 

press  of  the  Confederation  took  the 


INCEPTION    OF    TITLE,. 


127 


time  of  purchase.'  For  a  period  of  twenty  years,  beginning 
with  the  commencement  of  the  last  century,  the  lands  were  sold 
on  credit,  at  not  less  than  $2.00  per  acre ;  but  the  credit  sys- 
tem not  working  satisfactorily,  in  1S20  it  was  abandoned  and 
the  price  reduced  to  $1.25  per  acre.  The  $2.50  per  acre  lands 
are  such  as  lie  within  the  limits  of  railroad  or  internal  im- 
provement grants.  Exceptions  to  these  rules  are  made  un- 
der the  pre-emption  and  homestead  laws,  which  will  be  noticed 
hereafter.  The  lands  are  first  required  to  be  surveyed,  then 
advertised  and  exposed  for  sale  at  public  acution,  after  which, 
whatever  remains  is  subject  to  private  entry,  location,  etc.,  at 
fixed  prices.8 

§  107.  Public  Land  Sales.  The  public  sales  are  held  in 
pursuance  of  a  proclamation  by  the  President,9  or  of  a  public  no- 
tice given  in  accordance  with  directions  from  the  General  Land 
Office.10     At  this   sale  the  lands  are  offered   at   a   minimum 


1  See  instructions,  Sec'y  Interior, 
Sept.   10,  1849;  March  10,  1S69. 

8  The  first  method  of  disposal 
was  by  offering  at  public  sale  for 
such  price,  above  a  fixed  minimum, 
as  the  lands  would  bring,  and  after 
this  to  purchase  by  private  entry, 
on  a  credit  at  a  minimum  in  excess 
of  the  lowest  price  now  admissible 
by  law.  In  the  progress  of  events 
the  national  legislature  took  cog- 
nizance of  actual  settlers,  giving 
them  precedence  and  preference  in 
the  purchase  of  the  public  lands, 
and,  relieving  them  of  the  necessity 
of  competing  at  public  auction  with 
ordinary  purchasers,  permitted 
them,  on  very  liberal  terms  and  at 
the  lowest  price,  to  secure  titles  to 
actual  settlements.  Tbis  policy 
continued  retrospective  until  after 
the  operation  of  the  pre-emption 
law  of  1830,  and  its  supplements, 
and  up  to  the  passage  of  the  per- 
manenl  prospective  pre-emption  sys- 
by  the  act  of  Sept.  4,  1841. 
ress    lias   also  dealt   with   lands 


which  had  been  in  the  market  ten 
years  or  longer  by  reducing  these 
to  a"ctual  settlers  at  low  rates,  but 
this  benign  policy  having  led  to 
abuse  and  speculation,  Congress  re- 
scinded the  law,  yet  not  without 
indicating  a  continued  interest  in 
the  actual  settler  in  passing  the 
homestead  act  of  May  20,  1862,  by 
which  any  citizen  can  secure  a  farm 
comparatively  without  cost. 

9  In  the  early  periods  of  the  his- 
tory of  the  country,  Congress,  in 
some  cases,  fixed  by  law  the  times 
at  which  public  sales  in  particular 
land  districts  should  be  held,  and 
in  others  directed  the  sales  to  com- 
mence at  such  times  as  the  Presi- 
dent should  fix  by  proclamation. 
But  by  the  act  of  April  24,  1820, 
regulating  land  sales  generally,  it 
became  the  duty  of  the  President  to 
proclaim  and  offer  for  sale  all  the 
public  lands  as  they  might  be  sur- 
veyed  and    prepared    for    market. 

10  Rev.  Stat.  U.  S.  §  2353  et  seq. 


128  ABSTRACTS    OF    TITLE. 

price  and  can  not  be  sold  for  less,  but  may  be  sold  for  as  much 
more  as  any  one  will  give.  On  payment  of  the  price  for  which 
the  land  is  sold,  the  Receiver  of  the  local  land  office  issues  his 
receipt  as  in  other  cases  and  the  sale  is  noted  on  the  tract  books 
of  the  Register.  The  law  limits  the  duration  of  the  sale  to 
two  weeks,  and  in  case  of  a  shorter  period  private  entries  are 
not  permitted  until  the  expiration  of  that  term.  Compara- 
tively, only  a  small  portion  of  the  public  lands  are  disposed  of 
by  this  method. 

§  108.  Private  Entry  of  Lands.  The  term  "  entry,"  as 
applied  to  appropriations  of  public  land,  is  said  to  have  been 
borrowed  from  the  State  of  Virginia  where  it  has  been  used 
in  that  sense  from  a  very  remote  period.  It  has  now  a  fixed 
and  definite  signification  in  the  legal  nomenclature  of  the  coun- 
try, and  means  that  act  by  which  an  individual  acquires  an  in- 
ceptive right  to  a  portion  of  the  unappropriated  soil  of  the  coun- 
try by  filing  his  application  for  same  in  the  office  of  the  desig- 
nated land  agents  of  the  Government,  and  is  confined  to  the 
right  of  purchase  at  private  sale.11 

The  entry  is  made  by  presenting  to  the  Register  of  the  dis- 
trict land  office  a  written  application  describing  the  tract  de- 
sired, to  which  the  Register  attaches  his  certificate,  setting 
forth  the  fact  of  such  tract  being  at  the  time  subject  to  private 
entry  and  specifying  the  price  per  acre.  The  application  is 
then  taken  to  the  Receiver  to  whom  payment  is  made,  and  who 
in  return,  gives  duplicate  receipts,  one  of  which  is  retained  by 
the  applicant,  to  be  surrendered  on  receiving  his  patent,  and 
the  other,  together  with  the  application,  is  delivered  to  the 
Register,  who,  after  placing  the  application  on  file,  issues  his 
certificate  of  purchase  of  the  land.  The  application,  accompa- 
nied by  the  Register's  corresponding  certificate  of  purchase,  is 
then  forwarded  to  the  General  Land  Office  for  official  action.12 
Patents  do  not  issue  in  the  usual  course  of  business  in  the 
General  Land  Office  until   several  years   after  the  entry  has 

11  Chatard    V.    Pope,     12    Wheat.       Rev.    Stat.    U.    S..    §    2245   et   seq.; 
(U.  S.)    586.  and  see  Cir.  Gen.  Land  Office,  Mar. 

12  1    Lester's    Land    Laws,    311 ;       1,  1884. 


INCEPTION    OF    TITLE.  129 

been  made,  though  conveyances  with  warranty  are  freely  made, 
and  the  property  frequently  passes  through  many  hands  on  the 
strength  of  the  inchoate  title  conferred  by  entry  and  payment 
The  recital  of  this  entry  forms  the  first  statement  of  the  ab- 
stract of  all  lands  acquired  in  this  manner,  and  should  be  fol- 
lowed, whenever  practicable,  with  the  Receiver's  duplicate  cer- 
tificate of  purchase  and  payment. 

§  109.  Nature  of  Title  Conferred  by  Entry.  The  prac- 
tice of  dating  the  legal  title  from  the  date  of  the  entry  is  fol- 
lowed in  many  of  the  States,13  yet  nothing  passes  a  perfect  title 
to  public  lands,  with  one  exception,  but  a  patent.14  The  ex- 
ception being  where  Congress,  by  special  act,  conveys  land  in 
words  of  present  grant.15  Congress  has  the  sole  power  to  make 
and  authorize  appropriations  of  the  public  lands  16  and  to  de- 
clare the  effect  and  dignity  of  titles  emanating  from  the  United 
States,17  and  the  whole  legislation  of  the  federal  government  in 
relation  thereto  declares  the  patent  the  superior  and  conclusive 
evidence  of  legal  title;  until  it  issues  the  fee  remains  in  the 
government.18  The  entry  can  only  come  in  aid  of  the  legal 
title,  and  is  no  evidence  of  such  standing  alone,  when  opposed 
to  a  patent  for  the  same  land.19 

But  a  party  who  has  complied  with  all  the  terms  and  con- 
ditions which  entitle  him  to  a  patent  for  a  particular  tract  ac- 
quires a  vested  interest  therein,  and  is  to  be  regarded  as  the 
equitable  owner  thereof,  the  government  simply  retaining  the 
formal  legal  title  in  trust  for  the  purchaser  until  the 
patent  issues.20  The  right  to  a  patent  ,  once  vested  is 
equivalent,  as  respects  the  government,  to  a  patent  issued ;  and 

13  O'Brien  v.  Perry,  1  Black.  132;  Pet.  407;  Farrington  v.  Wilson,  29 
Tidd  v.  Panes,  26  Minn.   201;    Bui-       Wis.   383. 

lock  V.  Wilson,  5  Port.    (Ala.)    338;  17  Bagnell    V.    Broderick,    13    Pet. 

Burdick  V.   Briggs,   11    Wis.   126.  436. 

14  3  Opinions  Att'y  Gen.  91 ;  Car-  is  Peak  v.  Wendel,  5  Wheat.  293; 
man  v.  Johnson,  20  Mo.   108.  Hooper   v.   Scheimer,   23   How.   235; 

10:3   Opinions   Att'y   Gen.   350;    9  Hayward    r.    Orrasbee,    11    Wis.    3; 

do.  346;    11    do.  47;    Grignon's  Les-  Bronson  V.  Kukuk,  3   Dill.  490. 
soe  v.  Astor,  2  Howard,  319;  Challe-  10  Baird  V.  Wolf,  4  McLean,  549; 

foux  V.  Ducharme,  4  Wis.  554.  Peak  v.  Wendel.  5  Wheat.  293. 

16  United  States  v.  Fitzgerald,  15  20  Worth  v.  Branson,  98  U.  M     (8 

9 


130  ABSTRACTS    OF    TITLE. 

when  the  patent  is  issued  it  relates,  so  far  as  may  be  nec- 
essary to  cut  off  intervening  claimants,  to  the  inception  of  the 
right  of  the  patentee.21  '  The  interest  thus  acquired  is  a  recog- 
nized property  which  courts  will  respect  and  protect,22  and  has 
been  held  to  be  a  valid  subject  of  sale  or  transfer.23  In  such 
case  the  assignment  of  the  certificate  of  entry  passes  the  equi- 
table title  to  the  land,24  or,  if  intended  as  collateral  security 
creates  an  equitable  lien.25  On  filing  the  assignment  of  the 
certificate  in  the  General  Land  Office,  patent  will  issue  to  the 
assignee  with  the  same  effect  as  to  the  original  purchaser,26  or 
if  issued  to  the  original  purchaser  he  will  take  only  as  trustee 
for  the  true  owner.27  Assignments  are  not  frequently  met 
with  on  the  records.  As  a  rule,  the  early  proprietors  disposed 
of  their  interests  under  the  entry  by  deed  of  bargain  and  sale, 
and  usually  with  covenants  of  seizin  and  warranty.  The  re- 
ceiver's receipt  was  usually  placed  on  record  as  the  foundation 
of  title,  while  the  patent,  in  the  mutations  through  which  the 
property  afterward  passed,  was  often  overlooked  and  frequently 
forgotten.28 

The  effect  of  location  or  entry  in  due  form,  is  to  segregate 
the  land  from  the  public  domain  and  subject  it  to  private  own- 
ership, with  all  the  incidents  and  liabilities  thereof.  While 
such  location  is  in  force  no  other  can  lawfully  be  made ;  29  the 
public  faith  has  then  become  pledged  to  the  locator  and  any 
subsequent  grant  of  the  same  land  would  be  void,  unless  the 

Otto)     118;     Waters    v.     Bush,    42  25  Wallace  v.  Wilson,  30  Mo.  335. 

Iowa,  255.  26  Instructions    Sec'y    Interior;    1 

21  Stark  v.  Starrs,  6  Wall.  402;  Lester's  L.  L.  351;  Clark  v.  Hall, 
Taylor   v.    Brown,    5    Cranch,    234;  19  Mich.  356. 

Morrill    v.  Chapman,    35    Cal.    88;  27  Stark    v.     Mather,     1     Walker 

Astrom    v.  Hammond,    3    McLean,  (Miss.),    181;   Magruder  v.   Esmay, 

107.  35    Ohio    St.    221;    Cunningham    v. 

22  Gains  r.    Hale,    26    Ark.    168;  Ashley,  14  How.  377. 

McLane  v.  Tovee,  35  Wis.  27.  2S  Hundreds  of  thousands  of  un- 

-i  Carrall  v.  Safford,  3  How.  460 ;  called   for   patents   are   yet   remain- 

Hutchings  v.  Low,   15  Wall.   88.  ing  in  the  files  of  the  General  and 

24  Sillyman    v.    King,    36    Iowa,  local  land  offices.     Gen.  Land  Office 

207;  Meyers  v.  Croft,  13  Wall.  291;  Report,    1875. 

Burdick    v.    Wentworth,    42    Iowa,  29  Simmons  v.  Wagner,  101  U.  S. 

440.  251. 


INCEPTION    OF    TITLE.  131 

first  location  or  entry  is  set  aside.30  It  is  within  the  power  of 
the  Commissioner  of  the  General  Land  Office,  however,  to  can- 
cel entries  of  public  lands  at  any  time  before  patent  issues,  on 
proof  that  the  entryman  has  failed  to  comply  with  the  law.31 

§  110.  What  Land  Subject  to  Entry.  It  is  a  funda- 
mental principle,  underlying  the  land  system  of  the  country, 
that  private  entries  of  the  public  lands  are  never  permitted  un- 
less Congress  by  special  act  order  otherwise,  until  after  such 
lands  have  been  exposed  at  public  auction  at  the  price  for  which 
they  are  afterward  subject  to  entry.32  Where  lands  have  been 
surveyed  but  not  exposed  at  public  sale  they  may  be  obtained 
under  the  provisions  of  the  pre-emption  law,  in  which  manner 
large  portions  of  the  valuable  lands  in  the  States  admitted 
since  1841,  have  been  taken  up.33  Lands  known  as  "  mineral," 
including  deposits  of  the  precious  metals,  coal,  and  salines,  are 
not  subject  to  ordinary  private  entry  and  are  disposed  of  in 
accordance  with  special  acts,34  the  general  procedure,  however, 
being  the  same.  Xor  can  lands  be  entered  which  have  been 
reserved  for  any  purpose,  or  otherwise  withdrawn  from  mar- 
ket.35 

§  111.  Pre-emption  Entries.  As  has  been  shown,  in  the 
earlier  stages  of  our  land  system,  no  right  or  interest  could 
be  secured  by  the  individual  in  any  public  land  until  it  had 
been  surveyed  into  legal  divisions ;  nor  after  this  had  been  done 
was  it  subject  to  sale  until  by  a  proclamation  of  the  president, 
it  was  brought  into  market.  This  proclamation  always  fixed 
a  time  and  place  when  the  lands  within  a  given  district  were 
offered  for  sale  at  public  auction ;  and  until  all  of  them  were 
sold,  which  could  be  sold  in  this  manner,  at  prices  above  the 
minimum  fixed  by  law,  no  one  could  make  a  private  entry  of  a 
particular  tract  or  establish  a  claim  to  it.     The  scenes  of  vio- 

30  Worth  V.  Branson,  8  Otto,  118;  33  Meyers  v.  Croft,  13  Wall.  291. 
Lytle  v.  Arkansas,  9  How.  314;   U.  34  Act,  July  26th,   1866. 

B.  v.   Fitzgerald,  15  Pet.  401.  35  Hot  Spring  Cases,  92  U.  S.    (2 

31  Jones  v.  Meyers,  2  Idaho,  793.       Otto)     698;     Bellows    v.    Todd,    39 
32Eldred  v.  Sexton,  19  Wall.  189;       Iowa,  209. 

do.  30  Wis.   189.     See  also  4  Opin- 
ions Att'y  Gen.   107. 


[;;_!  ABSTRACTS    OF    TITLE. 

lence,  fraud  and  oppression,  and  the  combinations  which  at- 
tended these  sales,  as  well  as  the  wrongs  perpetrated  under  them, 
led  to  the  law  of  pre-emption.  It  often  occurred  that  emigra- 
tion, in  advance  of  the  readiness  of  the  public  lands  for  these 
sales,  had  caused  hundreds  and  thousands  to  settle  on  them ;  and 
when  they  came  to  be  sold  at  public  auction,  their  value,  en- 
hanced by  the  houses,  fences  and  other  improvements  of  the 
settler,  placed  them  beyond  his  reach,  and  they  fell  into  the 
hands  of  heartless  speculators.  To  remedy  this  state  of  things 
the  pre-emption  system  was  established.36 

A  "  pre-emption  claim  "  confers  upon  the  settler  the  exclu- 
sive right  to  purchase,  at  a  minimum  price,  the  public  land  of 
the  United  States  upon  which  he  has  settled  in  conformity  to 
the  acts  of  Congress  on  that  subject.37  This  policy  of  secur- 
ing to  individuals  a  preference  right  to  purchase,  had  its  origin 
at  about  the  commencement  of  the  last  century,  and  at  first 
was  confined  to  lands  which  had  been  surveyed,  but  gradually 
this  was  changed  until  in  18 62,38  pre-emptions  were  allowed, 
under  proper  restrictions,  on  unsurveyed  lands  as  well. 

The  laws  on  this  subject  are  numerous,  beginning  as  early 
as  May  10,  1800,  which  allowed  pre-emptions  in  the  country 
northwest  of  the  Ohio  river,  and  were  at  first  restricted  to 
particular  classes  and  localities,  until  the  act  of  September  4, 
1841,39  and  supplemental  act  of  March  3,  1853,40  which  super- 
seded all  previous  laws  and  now  constitute  the  general  pre- 
emption system.41  Under  this  law  the  settler,  possessing  the 
prescribed  qualifications,  who  enters  upon  public  land,  mak- 
ing  improvements   and  bringing  the  same  under   cultivation, 

36  Atherton  r.  Fowler,  6  Otto  (U.  lie  lands  before  they  had  been  ex- 
S.),  513.  posed    to    public    sale.     The    enact- 

37  Dillingham  V.  Fisher,  5  Wis.  ments  granting  pre-emption  rights, 
475.  before  this  time,  were  mainly  in  the 

3S  12  Stat,  at  Large,  418.  nature  of  relief  laws,  by  which  tres- 

39  5  Stat,  at  Large,  457.  passes   were   waived,   and   a   prefer- 

40  10   Stat,   at  Large,  244.  ence   was  given  to  those  who  were 

41  Prior  to  the  year  1841,  the  occupying  public  lands  at  the  dates 
legislation  of  Congress  had  not  en-  of  the  several  laws. 

couraged  settlements  upon  the  pub- 


INCEPTION    OF    TITLE.  133 

and  otherwise  conforming  to  specified  requirements,  acquires 
a  prior  and  exclusive  right  to  purchase,  and  is  protected  in 
the  enjoyment  of  his  claim  from  intrusion  or  trespass  by  oth- 
ers.42 To  fix  these  rights,  he  is  required,  where  the  land  at 
the  time  of  settlement  is  subject  to  private  entry,  to  file  with 
the  Register  a  declaratory  statement,  describing  the  land  set- 
tled upon,  and  reciting  his  intention  to  claim  the  same  under 
the  provisions  of  the  pre-emption  act,  and  within  twelve 
months  thereafter  to  make  proof  of  settlement  and  payment ; 
failing  in  these  particulars  the  land  so  settled  or  improved 
will  be  subject  to  the  entry  of  any  other  person.  By  the  act 
of  May  30,  1S62,43  the  pre-emption  claimant  of  unsurveyed 
lands  is  required  to  file  his  declaratory  statement  within  three 
months  from  the  date  of  the  receipt  at  the  district  land  office 
of  the  approved  plat  of  the  township  embracing  such  pre-emp- 
tion settlement.44 

§  112.  Nature  of  Pre-emption  Rights.  The  right  of 
pre-emption  attaches  only  to  such  public  lands  as  are  subject 
to  the  operation  of  the  general  land  system  of  the  country,  and 
not  to  those  which  have  been  taken  out  of  the  class  of  public 
lands  and  appropriated  to  specific  objects,  or  reserved  for  par- 
ticular purposes.45  ]STo  title,  either  legal  or  equitable,  is  con- 
ferred by  the  pre-emption  laws.  They  give  merely  a  naked 
right  to  purchase  and  acquire  title  within  a  specified  time,  on 
compliance  with  certain  conditions.40  The  settler  acquires, 
and  can  acquire,  no  vested  interest  in  the  land  he  occupies  by 
virtue  simply  of  settlement ;  47  the  land  continues  subject  to 
the  absolute  disposing  power  of  Congress  until  all  the  neces- 
sary legal  steps  to  perfect  an  entry  thereof  have  been  taken.48 

42  Coleman  v.  Allen,  5  Mo.  App.  47  Opinions  Att'y  Gen.  56;  Bur- 
127,  and  see,  Cir.  Gen.  Land  Office,       gess  v.  Gray,  16  How.  48. 

March  1,  1884.  48  Frisbie    V.    Whitney,    9    Wall. 

43  12  Stat,  at  Large,  418.  187;    Busch    V.    Donohue,    31    Mich. 

44  Megerle  v.  Ashe,  47  Cal.  632.  482;  Yosemite  Valley  Case,  15 
46  8  Opinions  Att'y  Gen.  456.  Wall.  77;  R.  R.  Co.  v.  Tevi*.  41 
4';  Woodward    V.    McReynolds,    2       Cal.  480 ;   Wittenbrock  V.  Wheadon, 

Pin.   (Wis.)   268;  Brown  v.  Throck-       128  Cal.   150. 
morion.    11    111.    529;    Hemphill    V. 
Davies,  38  Cal.  577. 


13-i  ABSTRACTS    OF    TITLE. 

Before  this  the  settler  has  nothing  but  a  contingent,  personal 
privilege  to  become,  without  competition,  the  first  purchaser 
of  the  property,  a  privilege  which  he  may  never  exercise,  or 
which  he  may  waive  or  abandon.  As  previously  stated,  this 
right  has  been  uniformly  held  to  confer  no  present  title  to  the 
land,  being  gratuitous,  prospective  and  contingent;  and  it  is 
indisputable  that  the  general  proprietor,  the  government,  has 
a  paramount  right  to  reserve  the  land  from  sale,  to  recall  the 
privilege  previously  conferred,  or  make  an  absolute  grant  of 
the  land  to  other  parties,  with  or  without  consideration.49 

The  interest  acquired  by  a  pre-emption  right  is  not  an  estate 
within  any  definition  known  to  the  common  law,50  and  at  best 
can  be  regarded  only  as  a  right  of  occupancy  with  a  privilege, 
enjoyed  by  no  one  else,  of  purchasing  on  prescribed  conditions. 
It  can  not  be  sold,  so  as  to  vest  the  purchaser  with  any  rights 
in  the  land,  and  such  a  sale  would  extinguish  the  pre-emptor's 
own  right.51      Xeither  can  it  be  conveyed  by  devise.52 

But  should  the  pre-emptor  die  without  establishing  his  claim 
within  the  period  limited  by  law,  his  rights  thus  initiated  are 
still  preserved,  and  the  title  may  be  perfected  by  his  personal 
representatives  or  his  heirs,  provided  the  entry  is  made  during 
the  period  in  which  the  pre-emptor  would  have  been  entitled 
to  do  so,  had  he  lived,  and  patent  will  be  issued  accordingly.53 
In  such  event,  however,  while  resort  may  be  had  to  the  laws 
of  the  State  under  which  the  descent  was  cast  for  the  purpose 

49  11   Opinions  Att'y  Gen.  490.  52  Rogers   V.   Clemmans,   26   Kan. 

50  Delaunay  V.    Burnett,   4   Gilm.       522. 

(111.)    484.  53  Rev.  Stat.  U.  S.  §  2269.     It  is 

51  Moore  v.  Jordan,  14  La.  Ann.  impossible  to  state  the  number  of 
414;  Quinn  v.  Kenyon,  38  Cal.  499;  entries  made  under  the  pre-emption 
Morgan  v.  Curtenins,  4  McLean,  laws,  because  the  system  of  the  Gen- 
3G6;  Brewster  v.  Madden,  15  Kan.  eral  Land  Office  carries  them  into 
249 ;  but  see  Delaunay  v.  Burnett,  "  cash  entries  "  and  they  are  there- 
4  Gilm.  (111.)  454,  Phelps  v.  Smith,  fore  embraced  in  the  annual  cash 
15  111.  572,  where  the  interest  is  re-  receipts  from  sale  of  land  under 
garded  as  property  which  may  pass  various  laws,  but  it  is  estimated 
by  deed,  the  purchaser  being  re-  that  there  has  been  disposed  of 
garded  as  the  "  legal  representa-  under  the  pre-emption  system,  since 
tive  "  of  the  original  claimant;  also,  its  inauguration,  about  175,000,000 
Bowers  v.  Kuscher,  14  Iowa,  301.  acres. 


INCEPTION    OF    TITLE.  135 

of  determining  who  are  the  heirs,  yet  the  heirs  do  not  take  the 
land  by  inheritance  from  their  ancestor,  but  by  direct  con- 
veyance from  the  United  States,  and  the  portion  taken  by 
each  heir  is  determined,  not  by  the  law  of  inheritance  but  by 
the  terms  of  the  conveyance.54 

§  113.  Conveyances  before  Entry.  The  benefits  of  the 
pre-emption  acts,  being  intended  only  for  the  actual  settler, 
are  personal  in  their  application,  the  12th  section  of  the  act 
of  1811  55  providing  that  "  all  assignments  and  transfers  of  the 
right  hereby  secured  prior  to  the  issuing  of  the  patent  shall 
be  null  and  void;"  and  to  prevent  speculators  from  acquiring 
the  land,  the  applicant,  before  being  allowed  to  enter  same, 
is  required  to  swear  that  he  has  not  contracted  it  away,  nor 
settled  to  sell  on  speculation,  and  any  grant  or  conveyance 
made  by  him  before  entry  is  declared  void,  with  an  exception 
in  favor  of  bona  fide  purchasers  for  a  valuable  consideration. 
This  restriction  has  been  held,  however,  to  extend  only  to  the 
right  to  pre-emption;  that  is,  the  preference  right  to  purchase 
at  a  minimum  price,  no  matter  what  the  value  might  be  when 
the  time  limited  for  perfecting  the  pre-emption  has  expired,56 
leaving  the  pre-emptor  free  to  sell  or  otherwise  dispose  of  the 
land  after  the  entry  had  been  made.57 

Since  the  passage  of  the  act  of  1841,  in  those  parts  of  the 
United  States  where  that  act  applies,  the  right  to  sell  has  )>een 
freely  exercised  after  the  claim,  has  been  proved  up,  the  land 
paid  for  and  the  certificate  of  entry  received ;  the  pre-emptor 
then  standing  in  the  same  relation  to  the  government  as  other 
purchasers,58  and  though  the  patent  may  only  issue  to  the 
purchaser,  it  will  inure  to  the  benefit  of  his  grantee.59  By 
proof  and  payment  the  equities  of  the  claimant  are  matured 
and  complete,  and  while  the  right  of  government  to  dispose 
of  its  own  property  is  undisputed,  as  well  to  prescribe  rules 
for  the  disposition  of  same,  yet,  subject  to  these  well-known 

54  Wittenbrock    v.    Wheadon,  128  57  Eobbins  v.  Bunn,  54   III.  48. 

C'al.  150.  58Cady  v.  Eighmey,  54  Iowa,  615. 

65  5  Stat,  at  Large,  457.  59  Camp  v.  Smith,  2  Minn.  155. 

58  Meyers  V.  Croft,  13  Wall.  291. 


136  ABSTRACTS    OF    TITLE. 

principles,  parties  rightfully  in  possession  of  the  soil  may 
make  valid  contracts,  even  concerning  the  title,  predicated  upon 
the  hypothesis  that  they  may  thereafter  lawfully  acquire  such 
title,  except  in  cases  where  Congress  has  imposed  positive  re- 
strictions.60 At  the  same  time  it  must  ever  be  borne  in  mind 
that  the  government  has  the  power  to  cancel  all  entries  of  pub- 
lic lands  at  any  time  before  patent  issues,61  and  that  the  rule 
of  caveat  emptor  applies  with  peculiar  force  to  all  purchasers 
of  land  from  pre-emption  entrymen.62 

§  111.  Graduation  Entries.  In  order  to  further  facili- 
tate settlement  and  encourage  the  sale  of  public  lands  to  ac- 
tual settlers  and  cultivators,  Congress,  by  the  act  of  August 
4,  1854,63  provided  for  a  graduated  scale  of  prices,  for  lands 
which  had  been  in  the  market  for  ten  years  and  upward,  rang- 
ing from  121/)  cents  to  $1,00  per  acre.  This  act  remained 
in  force  until  June  2,  1862,  when  it  was  repealed.64  In  its 
essential  features  it  closely  resembled  the  pre-emption  law,  to 
which  it  was  in  fact  an  aid.  The  lands  could  also  be  pur- 
chased for  cash  at  the  graduated  price.  Like  the  pre-emption 
law,  the  rights  conferred  by  this  act  were  pergonal,  and  be- 
cause of  actual  settlement  and   cultivation,  made   or  contem- 

co  Lamb   V.    Davenportj    18    Wall.  act,   the   quantity   of   land    sold,   as 

307.     In  California  it  has  been  held  shown   by  the   reports   of   the   Gen- 

that  a  mortgage  made  before  proof  eral  Land  Office,  aggregating  nearly 

and    payment,     might    be     enforced  20,000,000   acres.     It   is   still   possi- 

after     entry     had     been     perfected:  ble  that  in  some  few  cases  patents 

Clark  V.  Baker,  14  Cal.  612;  Christy  have  not  been  issued  on  the  entries 

t*.  Dana,  34  Cal.  548.     See  also  Ilea-  made,  as  there  were  many  cases  in 

soner  v.  Markley,   25  Kan.   635.  which  the  required  proof  of  settle- 

61  As  where  the  pre-emptor  has  ment  and  cultivation  was  wanting, 
failed  to  comply  with  the  require-  but  under  a  confirmatory  act  passed 
ments  of  law  and  has  procured  his  March  3,  185-7,  the  patents  were  de- 
final  receipt  or  certificate  on  false  livered,  on  application  therefor, 
evidence.  See,  Jones  v.  Meyers,  2  without  the  proof  being  required  in 
Idaho,    793.  all  such  cases,  where  the  entry  was 

62  Taylor  V.  Weston,  77  Cal.  534;  allowed  prior  to  the  passage  of  that 
Guidry  V.  Woods,  19  La.  334;  Hes-  act,  and  where  it  was  not  found  to 
ties   p.  Brennan,  50  Cal.  211.  be   fraudulently   or  evasively  made. 

63  10  Stat,  at  Large,  574.  Subsequent   to   the   passage    of  that 
<''4  Thousands      of      entries      were       act,  and  prior  to  June  2,  1862,  when 

made   under   the   provisions   of  this       the    graduation    law    was    repealed, 


INCEPTION    OF    TITLE.  137 

plated.  Assignments  of  the  rights  acquired  under  the  acts 
were  expressly  prohibited  and  wholly  disregarded,  and  the  pat- 
ents in  every  instance  issued  to  the  original  purchaser. 

The  method  of  acquiring  title  under  graduation  acts  was 
substantially  the  same  as  under  the  pre-emption  laws,  with 
only  a  slight  difference  in  details.  It  is  not  customary,  nor 
is  it  necessary,  to  incorporate  in  the  abstract  the  inceptive  de- 
tails prior  to  entry.  The  matter  is  optional  with  the  examiner, 
but  the  entry  is  the  first  material  stage. 

§  115.  Donation  Entries.  In  a  few  localities  initiations 
of  title  will  be  found  under  what  are  known  as  the  "  Dona- 
tion Acts."  These  acts  were  a  series  of  laws  designed  to 
induce  settlements  on  the  public  lands  in  dangerous  or  distant 
parts  of  the  nation.  They  were  all  local  in  character  as  well  as 
temporary  in  their  application,  and  all  of  them  have  long  since 
expired  by  their  own  limitation.  In  their  practical  features 
they  resembled  the  present  homestead  law,  of  which,  indeed, 
they  were  the  precursors.  The  first  of  these  laws,  passed  in 
1842,G5  was  had  in  view  of  the  Indian  difficulties  in  Florida, 
and  provided  for  the  donation  of  one  quarter  section  of  land 
to  any  person,  able  to  bear  arms,  who  should  make  an  actual 
settlement  within  a  certain  portion  of  the  peninsula.60  In 
1850,GT  a  still  more  liberal  act  was  passed  with  special  refer- 
ence to  the  Territory  of  Oregon,  and  when  in  1853  the  Terri- 
torial government  of  Washington  Territory  was  established, 
its  terms  were  extended  over  that  Territory.  This  act  donated 
from  a  quarter  to  an  entire  section,  a  premium  being  placed 
on  matrimony  by  a  double  allowance  to  a  married  man,  and 
by  permitting  the  wife  to  retain  the  ownership  of  half  the 

a  large  number  of  entries  were  al-  March  3,  1857,  were  made  applica- 
lowed  under  that  law,  and  in  the  ble  by  the  act  of  Feb.  17,  1873,  and 
course  of  business  there  came  to  the  issuing  of  patents  has  since  con- 
be  many   patents   for  entries   so  al-  tinned. 

lowed,    the    delivery    of    which    was  05  5  Stat,   at  Large,  502. 

suspended    for   the   reason   that   the  06  Tin's   law.  which  was  variously 

requisite   proof    was    not    forthcom-  amended,   resulted   in   the   patenting 

iii'-r.     To  this  class  of  cases  the  con-  of   1.317   claims. 

firmatory    principles   of   the    act    of  07  9  Stat,  at  Large,  496. 


138  ABSTRACTS    OF    TITLE. 

land  in  her  own  right.08  Residence  on  and  cultivation  of  the 
land  for  four  consecutive  years  was  necessary  to  insure  a 
patent  from  the  government.*  The  act  expired  Doe.  1,  1855. 
In  1854  69  a  similar  act  was  passed  with  special  reference  to 
the  Territory  of  New  Mexico,  except  that  the  grant  was  re- 
stricted in  quantity  to  160  acres,  and  available  only  by  males 
then  residing  in  the  Territory  or  who  should  remove  there 
prior  to  1858.70 

§  116.  Homestead  Entries.  Until  1862,  Congress  had 
passed  no  general  law  offering  the  public  domain  in  a  limited 
quantity  to  any  person  who  would  cultivate  and  make  a  per- 
manent home  thereon.  Pre-emption  laws,  securing  the  right 
to  enter  land  by  purchase  at  a  premium  price  fixed  per  acre 
had  been  enacted,  and  donation  laws,  applicable  to  particular 
States  had  been  passed,  but  the  liberal  policy  of  offering  home- 
steads had  not  been  extended  to  all  persons.  The  act  of  May 
20th  of  that  year  71  is  the  first  homestead  law  of  the  govern- 
ment, "  and  it  would  be  difficult  perhaps,"  says  Dillon,  J., 
"  to  point  to  any  enactment  of  the  Federal  Congress,  more 
wise  in  conception,  just  in  policy,  and  beneficial  in  results 
than  this."  72  By  this  act  a  quantity  of  land,  not  exceeding 
160  acres,  is  given  to  any  person,  being  the  head  of  a  family 
and  possessing  the  requisite  qualifications,  on  condition  of  set- 
tlement, cultivation  and  continuous  occupation  as  a  home  by 
the  settler  for  a  period  of  five  years.73     During  this  period 

6S  Upwards  of  8,000  donation  cer-  Florida,  Arkansas,  Mississippi,  and 

tificates  were  issued  under  this  law  Alabama.     Congress,  June  21,  18(i6, 

covering  about  3,000,000  acres.  directed    that    all    public    lands    in 

09  10  Stat,  at  Large,  308.  those  States  should  be  reserved  for 

to  Less  than  200  certificates  have  settlement  under  the  homestead  act 

been  issued  under  this  law.  of  May  20,  18G2.     The  obtaining  of 

71  12  Stat,  at  Large,  392.  these  lands  by  the  landless  class  of 

72  Seymour  v.  Sanders,  3  Dill.  the  South  was  considered  essential 
437.  to  their  future  welfare  and  that  of 

73  At  the  close'  of  the  civil  war,  the  Nation.  Congress  therefore,  en- 
the  President,  by  proclamation  June  acted  that  they  should  only  be  en- 
13,  1865,  ordered  the  reopening  of  tered  under  the  homestead  law,  and, 
the  United  States  district  land  of-  changing  the  rule,  fixed  the  maxi- 
fices    in    the    States    of    Louisiana,  mum    acreage   to   be    entered    by   a 


INCEPTION    OF    TITLE.  139 

lie  is  prevented  from  alienating  any  part  of  it,  or  from  making 
any  actual  change  of  residence,  or  from  abandoning  the  land 
for  more  than  six  months  at  a  time.  A  full  compliance  with 
all  the  provisions  of  the  act,  entitles  him  to  a  patent  at  the 
expiration  of  five  years. 

The  law  requires  the  land  "  to  be  located  in  one  body,  in 
conformity  to  the  legal  subdivisions  of  the  public  lands,  and 
after  the  same  shall  have  been  surveyed."  The  applicant  is 
required  to  file  with  the  Register  of  the  district  land  office 
his  application,  designating  the  tract  desired  to  be  entered,  to- 
gether with  his  affidavit  setting  forth  the  facts  which  bring 
him  within  the  requirements  of  the  law,74  whereupon  the  Re- 
ceiver issues  homestead  duplicate  receipts  for  each  entry,  one 
of  which  is  delivered  to  the  applicant,  and  the  other  returned 
to  the  General  Land  Office.75  No  certificate  is  issued  at  the 
time  of  entry,  nor  until  the  expiration  of  the  five  years,  ex- 
cept in  case  of  a  sale  for  the  benefit  of  infant  heirs,70  or  where 
full  payment  is  made  before  that  time  as  provided  by  the  act. 
In  case  of  a  sale  for  the  benefit  of  infant  heirs,  a  certificate 
issues  in  the  name  of  the  purchaser,  upon  evidence  of  sale 
made  in  obedience  to  a  decree  of  a  court  of  competent  juris- 
diction. In  case  of  full  payment  the  party  is  required  to 
make  proof  of  settlement  and  cultivation  as  required  by  the 
pre-emption  laws,  upon  which,  and  the  surrender  of  the  home- 
stead duplicate,  a  new  and  original  entry  may  be  made  and 
a  pre-emption  receipt  will  issue  as  in  ordinary  cases.77 

person  at  80   acres.     This  law  con-  upon    the    cash    value    of    the    land 

tinued  in  force  until  June  22,  1876,  applied     for,    based    on    $1.25    per 

when  it  was  repealed  and  all  of  the  acre. 

lands   in    the   five    Southern    States  75  Cir.   Gen.  Land  Office,  Mar.   1, 

were    ordered    to    be    brought    into  1884. 

market  by  proclamation  for  sale  at  76  §  2  of  act. 

public    offering    to    be    followed    by  "7  Cir.  Gen.   Land  Office,  Oct.  30, 

private  entry.     Title  to  upwards  of  1802.     From  May  20,  1862,  the  date 

12,000,000    acres    was    initiated    by  of   the   law,   to   June   30,    1889,   ac- 

honicstcad   entry    under   the    law    of  cording  to  a  very   modest  estimate, 

1866.  the   number   of   patents   issued    was 

7i  A  fee  of  $10  must  also  be  paid  297,208,   embracing  an  area  of  74,- 

at  this   lime,   together    with    a,   coin-  302     square     miles,     or     47,553,280 

mission  of  one-half  of  one  per  cent.  acres.     Rep.  Gen.  Land  Office,  1889. 


140  ABSTRACTS    OF    TITLE. 

§  117.  Rights  Acquired  Under  Homestead  Acts.  By 
the  preliminary  proceedings  already  noted,  an  inceptive  right 
is  vested  in  the  settler,  which  by  a  faithful  observance  of  the 
law  in  regard  to  settlement  and  cultivation  for  the  continuous 
term  of  live  years,  and  final  proof  and  payment 78  is  perfected 
and  made  the  basis  of  a  patent  or  complete  title.  The  home- 
stead settler's  right  attaches  only  from  the  date  of  entry,  the 
pre-emptor's  from  the  date  of  his  actual  personal  settlement. 
The  title  in  either  case  is  consummated  by  a  full  compliance 
with  the  terms  and  conditions  imposed  by  law.79  By  the  4th 
section  of  the  act  of  1802,  land  acquired  in  this  manner  is  de- 
clared to  be  not  liable  for  debts  contracted  prior  to  the  issuing 
of  the  patent. 

The  sale  of  a  homestead  claim  by  the  settler,  before  com- 
pletion of  title,  vests  no  title  or  equities  in  the  purchaser,  and 
is  not  recognized  by  law,80  and,  in  making  final  proof,  the  set- 
tler is  by  law  required  to  swear  that  no  part  of  the  land  has 
been  alienated  except  for  church,  cemetery  or  school  purposes, 
or  the  right  of  way  of  a  railroad.81 

In  the  event  that  a  homestead  claimant  dies  before  patent 
issues,  or  before  the  right  to  demand  a  patent  has  accrued,  the 
land  does  not  become  part  of  his  estate.  Upon  his  death  all 
his  rights  under  the  homestead  entry  cease.  His  heirs  there- 
upon become  entitled  to  a  patent,82  not  because  they  have  suc- 
ceeded to  his  equitable  interest,  however,  but  because  the  law 
gives  them  preference  as  new  homesteaders,  and  allow<s  them 
the  benefit  of  the  residence  of  their  ancestor  on  the  land.83 

§  118.     Desert    Land    Entries.     In    the    western-central 

78  The  payment  here  mentioned  is  Act  of  June  15,  1880  (21  Stat,  at 
a  commission  of  %  of  one  per  cent.  Large,  §  237 ) .  This  act,  however, 
paid  on  the  issuance  of  the  certifi-  is  retrospective  in  its  operation  and 
cate.  The  fees  and  commissions,  applicable  only  to  peculiar  eircum- 
however,  vary  somewhat.  See  In-  stances.  See,  Cir.  Gen.  Land  Office 
structions  Gen.  Land  Office,  Oct.  30,  Mar.   1,   1884. 

1862.  81  Rev.  Stat.  U.  S.  §  2288. 

79  Commissioner's        Instructions,  82  Rev.  Stat.  U.  S.  §  2291. 
Aug.  25,  1866.  S3  Gjerstadengen  v.  Van  Duzen,  7 

so  An     exception     to     this     rule       N.   Dak.   612. 
seems   to   have   been   made    by   the 


INCEPTION    OF    TITLE.  141 

part  of  tlie  United  States  there  is  a  vast  arid  region,  estimated 
to  contain  more  than  seven  hundred  millions  of  acres,  wherein 
agriculture  can  be  conducted  only  by  means  of  irrigation.84 
These  tracts  have  received  the  name  "  desert  lands,"  notwith- 
standing they  possess  remarkable  fertility  when  properly  irri- 
gated, and,  from  the  experience  of  actual  settlers,  can  be  made 
to  produce  larger  crops  than  those  which  reward  the  labors  of 
the  husbandman  in  regions  subject  to  periodic  or  occasional 
rainfall. s5 

In  order  to  induce  settlement  on  this  class  of  lands  lying 
west  of  the  Missouri  river,  Congress,  in  18TT,8G  passed  what 
is  known  as  the  "  Desert  Land  Act,"  the  object  of  which  is  to 
effect  a  reclamation  of  lands  which  will  not,  without  arti- 
ficial irrigation,  produce  any  agricultural  crop.  This  act  is 
not  a  donation  law,  however,  but  simply  a  variation  of  the 
ordinary  cash  entry,  its  beneficial  features  being  that  the  claim- 
ant has  three  years  in  which  to  introduce  water  and  pay  for 
the  land.  A  duplicate  certificate  is  issued  at  the  time  of  entry, 
a  small  entry  fee  being  paid,  but  final  certificate  of  purchase 
is  not  given  until  proof  of  compliance  with  the  terms  of  the 
act  and  full  payment  has  been  made  for  the  land,  which  is 
usually  three  years  afterward. 

§  110.  Tree  Claims.  To  promote  the  growth  of  timber 
on  the  treeless  prairies  of  the  West,  Congress  has  further  en- 
acted a  law,  by  which  any  person  entitled  to  make  a  pre'-emp- 
tiuii  or  homestead  entry  may  secure  160  acres  of  public  land 
by  planting,  protecting  and  keeping  in  a  healthy  growing  con- 
dition thereon,  for  eight  years,  ten  acres  of  timber.  Lands 
subject  to  entry  under  this  act  must  be  composed  exclusively 

84  These  lands  lie  in  Nevada,  New  the  Arid  Region,  by  Powell,  1878; 
Mexico.  Arizona.  Colorado,  Wyom-  Preliminary  Report  of  Public  Land 
bag,   Southern   California,  Montana,      Commission,  1880. 

Eastern     Oregon     and     Washington,  86  Act    of   March    3,    1877.     This 

and  a   portion   of  the   Western  part  act  applies   only  to  California,  Ore- 

of     the     Dakotas.     They     are     also  gon,     Nevada,    Washington,     Idaho, 

found  in  (small  areas  in  other  parts  Montana,  Utah,   Wyoming,  Arizona, 

of  the  Western  States.                          .  New  Mexico  and  Dakota. 

85  See,    Report    on    the    Lands   of 


142  ABSTKACTS    OF    TITLE. 

of  prairie  lands,  or  other  lands  devoid  of  timber.  At  the  ex- 
piration of  eight  years  final  proof  is  made  and  patent  issues 
as  in  other  cases.  Residence  or  actual  settlement  is  not  nec- 
essary, nor  will  an  entry  of  this  character  preclude  a  simul- 
taneous homestead  or  pre-emption  entry,  hence  "tree  claims" 
have  been  made  on  a  large  portion  of  the  western  lands  and 
will  form  the  initial  stage  of  title  to  much  valuable  property. 

If  the  owner  of  a  timber  claim  dies  before  he  has  complied 
with  all  the  conditions  necessary  to  obtain  a  patent,  his  heirs 
may  complete  the  remaining  conditions,  and  upon  obtaining 
a  patent  they  take  the  land  in  equal  shares  as  direct  grantees 
of  the  government  and  not  by  inheritance.87 

§  120.  Location  by  Military  Warrants.  The  practice 
of  granting  bounty  land  to  officers  and  soldiers  who  have  been 
engaged  in  the  military  service  of  the  United  States,  as  a 
public  reward  for  devotion  and  patriotism,  dates  back  to  the 
period  of  the  Revolution,  and  has  formed  the  subject  of  a 
number  of  Congressional  enactments  since  that  time.88  The 
warrants  or  certificates  issued  in  pursuance  of  these  acts  may 
be  located  at  any  land  office  in  the  United  States  and  must 
be  made  on  lands  subject  to  private  entry,  according  to  the 
legal  subdivisions  and  in  one  body,  the  selection  always  to  be 
in  as  compact  a  form  as  possible.  The  law  expressly  forbids 
the  location  of  a  warrant  upon  any  lands  to  which  there  shall 
be  a  pre-emption  right,  or  upon  which  there  shall  be  an  ac- 
tual settlement  or  cultivation,  or  upon  any  lands  which  are 
reserved  or  withdrawn  from  market  for  any  purpose  what- 
ever.89 When  located  by  the  warrantee  in  person  they  are 
available  upon  any  tracts  of  land  which  may  be  entered  under 
the  general  pre-emption  laws,  whether  such  land  has  or  has 
not  been  offered  at  public  sale.90     By  act  of  Congress  of  March 

87  Cooper  v.  Wilder,  111  Cal.  191.       time    allowances    on    homestead   en- 

88  No    land    bounties    were    given       tries. 

by  Congress  for  military  service  in  89  Act  Feb.    11,   1S47;   Act.   Sept. 

the  civil   war.     The  only   privileges  28,   1850. 

granted  for  such  service,  in  connec-  90 'Instructions    Gen.    Land   Office, 

tion    with    the    public    lands,    were  April  1,  1848;  do.  Mar.  31,  1851. 


INCEPTION    OF    TITLE.  143 

22,  1852,  certificates  of  location  of  military  land  warrants 
were  made  assignable,  and  the  interest  acquired  by  valid  loca- 
tion was  made  to  pass  by  deed  or  instrument  of  writing,  in 
the  form  and  subject  to  the  regulations  prescribed  by  the 
General  Land  Office,  the  assignee  becoming  fully  vested  with 
all  the  rights  and  property  of  the  original  owner  or  warrantee.91 

The  entry  is  made  by  ajmlication  to  the  Register  alone,  who 
issues  duplicate  certificates  of  purchase,  one  of  which  is  de- 
livered to  the  purchaser  and  the  other  transmitted  to  the  Gen- 
eral Land  Office  as  in  other  classes  of  entries.  If  the  certifi- 
cate has  been  assigned,  and  such  assignment  has  been  received 
before  the  issue  of  the  patent,  the  same  will  be  issued  in  the 
name  of  the  assignee.  Assignments  and  locations,  as  well  as 
deeds  of  land  so  located  prior  to  the  issue  of  the  patent,  if 
made  before  ]\Iarch  22,  1852,  have  been  held  invalid.92 

§  121.  Land  Scrip.  In  1781,  the  State  of  Virginia 
ceded  to  the  I  nited  States  the  largest  and  most  valuable  body 
of  land  that. ever  belonged  to  the  public  domain  of  any  State 
in  the  world.  But  previous  to  the  cession  the  State  had  prom- 
ised to  give  certain  portions  of  it  to  the  soldiers  and  sailors 
who  had  served  during  the  Revolutionary  War  in  its  armies 
and  navies.  The  government  took  the  land  charged  with  this 
obligation  to  satisfy  the  claims  of  Virginia's  defenders,  and 
•assumed  all  unsatisfied  outstanding  military  land  warrants  of 
the  State,  issued  by  proper  authorities,  giving  in  exchange 
therefor  the  land  "  scrip  "  of  the  L'nited  States.93  This  scrip 
is  receivable  in  payment  of  any  lands  owned  by  the  United 
States,  subject  to  sale  at  private  entry,  but  can  not  be  applied 
by  pre-emptors. 

There  has  also  been  issued  under  acts  of  Congress,94  and  in 
pursuance  of  treaties  with  Indian  tribes,  a  species  of  location 

91  Waters  v.  Busch,  42  Iowa,  255;  92  Nichols      v.     Nichols,     3     Pin. 

Bell  v.  Ilearne,    19   How.   260.     The  (Wis.)    174;    Stephenson   V.   Wilson, 

grants  for  military  and  naval  land  37  Wis.  482. 

bounties    from    the   origin    of   these  93  6   Opinions   Ally.   Gen.   243;   9 

laws  to  June  30,  1883,  amounted  to  do.   156;   Act  Aug.  31,  1852. 

61,004.150   acres.     Rep.    Pub.    Land  94  10  Stat,  at  Large,  304. 
Commission,   1883. 


144  ABSTRACTS    OF    TITLE. 

certificates  known  as  Indian  or  Half-breed  scrip.  It  is  issued 
to  the  Half-breed  and  can  be  located  only  in  his  name,  and, 
unlike  the  Virginia  scrip,  can  not  be  treated  as  money,  but 
must  be  located  acre  for  acre.  This  scrip  is  not  assignable  and 
transfers  of  same  are  held  void.  Though  originally  confined 
to  reservations,  ,the  sphere  of  location  has  by  statute  been  en- 
larged so  as  to  comprise  any  other  unoccupied  lands  subject  to 
pre-emption  or  private  sale.  Xo  receipt  is  issued  to  the  loca- 
tor, except  in  unavoidable  cases,  as  where  there  is  a  small  ex- 
cess in  the  area  of  location  over  the  scrip,  which  must  be  paid 
for  and  receipt  issued  as  in  bounty  land  warrant  cases.  But 
no  certificate  of  purchase  is  issued,  as  in  case  of  money  pur- 
chases, the  scrip  and  application,  instead  of  certificates  of  pur-, 
chase,  being  the  instruments  of  title  which  are  returned  to  the 
General  Land  Office  in  this  class  of  business.95  A  certificate 
by  the  commissioner  of  the  General  Land  Office  showing  the 
location  of  the  scrip,  and  that  such  location  wras  made  by  the 
party  authorized  to  do  so,  is  competent  evidence  to  show  title 
in  the  location.  A  copy  of  the  scrip  is  not  essential  to  prove 
title  from  the  government  whenever  this  becomes  necessary.06 
Private  land  scrip  is  issued  on  confirmation  of  the  claims 
of  individuals,  and  is  intended  as  a  compensation  to  the  donee 
for  the  loss  of  valuable  estates  or  interests  in  lands.  It  may 
be  assigned,  and  when  assigned  may  be  located  in  the  name 
of  the  assignee.  It  would  appear  that  entries  made  with  this 
scrip  are  not  patentable,  no  provision  being  made  therefor, 
but  it  seems  that  in  this  case  a  patent  is  not  absolutely  nec- 
essary for  the  full  protection  of  claimants,  inasmuch  as  a  cer- 
tificate of  entry  will  be  full  evidence  of  a  complete  relinquish- 
ment by  the  United  States  of  all  its  interests  in  the  land  lo- 
cated.97 

95  Instructions   Gen.   Land    Office,  oft  repeated  decisions  of  courts,  re- 
Feb.  22,  1864;   do.  May  13,   1865.  specting  the  necessity  of  a  patent  to 
90  Wilcox  v.  Jackson,  109  111.  261.  prove  title   out   of   the   government, 
97  Opinion  and  instructions   Secy.  in  actions  of  ejectment  or  other  pro- 
of Int.,  Aug.  4,  1875.     It  is  difficult  ceedings    at    law    to    try    disputed 
to  reconcile  this  procedure  with  the  titles. 


IXCEPTION    OF    TITLE.  115 

The  most  important  of  this  peculiar  class  of  paper  is  that 
known  as  Agricultural  College  scrip.  It  is  issued  in  pur- 
suance of  an  act  of  Congress,  passed  July  2,  1862,  to  donate  a 
portion  of  the  public  land  to  the  several  States  and  Territories 
which  may  provide  colleges  for  the  benefit  of  agriculture  and 
the  mechanic  arts.  The  amount  of  land  donated  by  this  act 
was  a  quantity  equal  to  30,000  acres  for  each  senator  and  rep- 
resentative in  Congress  by  the  apportionment  under  the  census 
of  1860.  The  quantity  of  land  to  which  each  State  was  enti- 
tled was  to  be  selected  primarily  from  the  public  lands,  within 
the  limits  of  such  State,  that  wTere  subject  to  sale  at  private 
entry  at  the  minimum  price,  and  in  case  of  a  deficiency  of 
such  lands  the  Secretary  of  the  Interior  was  instructed  to  issue 
land  scrip  to  the  amount  in  acres  for  such  deficiency  of  its 
distributive  share.  This  scrip  was  to  be  sold  by  the  States  and 
the  proceeds  applied  to  the  uses  prescribed  by  the  act.  The 
State  is  prohibited  from  locating  the  scrip  within  the  limits 
of  any  other  State,  but  its  assignees  may  locate  same  upon 
any  of  the  unappropriated  lands  of  the  United  States  subject 
to  sale  at  private  entry,  or  in  payment  for  pre-emptions,98  and 
in  commuting  homestead  entries."  The  manner  of  proceed- 
ing to  acquire  title  with  this  class  of  certificates  is  the  same  as 
in  cash  and  warrant  cases. 

§  122.  Swamp  Land  Grants.  By  act  of  March  2,  1849, 
Congress  made  a  grant  to  the  State  of  Louisiana  of  certain 
swamp  and  overflowed  lands,  and  by  act  of  Sept.  28,  1850,1 
made  a  similar  concession  to  the  State  of  Arkansas  "  and 
each  of  the  other  States  of  the  LTnion  in  which  such  swamp 
and  overflowed  lands  may  be  situated."  The  first  act  applied 
only  to  the  State  of  Louisiana,  and  vested  the  fee  in  said  lands 
upon  the  approval  of  the  selections  by  the  Secretary  of  the 
Interior.  The  general  law  of  1850  provides  that  the  fee  shall 
vest  in  the  State  upon  the  issuing  of  a  patent.  The  method 
of  selection  being  left  optional  with  the  States,  Michigan  and 

08  Instructions  Gen.  Land  Office,  Feb'y  8,  1872.  See  also  15  Stat,  at 
July  22,   1870.  Large,   227. 

99  Instructions  Gen.   Land   Office,  l  9  Stat,  at  Large,  519. 

10 


14  G  ABSTRACTS    OF    TITLE. 

Wisconsin  adopted  the  field  notes  of  survey  as  the  basis  of 
their  acceptance,  while  the  others  agreed  to  ascertain  the  lands 
by  examination  in  the  field.2  The  grant  comprised  all  lands 
which  were  wet  and  unfit  for  cultivation,  and  included  also 
all  lands  which,  though  dry  part  of  the  year,  were  subject  to 
inundation  at  the  planting,  growing  or  harvesting  season,  so 
as  to  destroy  the  crop.  These  lands,  for  the  most  part,  have 
since,  by  drainage  and  cultivation,  become  valuable  for  agri- 
cultural purposes,  and  the  title  to  many  fine  farms  in  the  West- 
ern States  is  derived  through  the  swamp  land  grants.3 

Though  the  act  provided  for  the  issuing  of  a  patent  to  vest 
the  fee,  it  was  itcelf  a  present  grant,  wanting  nothing  but  a 
definition  of  boundaries  to  make  it  perfect,  the  patent  being 
merely  in  confirmation  of  the  equitable  title  already  vested,4 
yet  as  the  fee  remained  in  the  government  until  the  issuance 
of  the  patent,  the  State  would  have  no  power  to  convey  a  legal 
title  or  dispose  of  the  land  prior  to  that  event.5  The  com- 
plete abstract,  therefore,  should  recite  the  original  grant,  show- 
ing the  acceptance  by  the  State,  and  any  other  necessary  fea- 
ture, and  finally  the  patent  from  the  government,  as  the 
foundation  of  title. 

It  will  be  observed  that  the  provisions  of  this  act  extend  to, 
and  their  benefits  are  conferred  upon,  only  "  each  of  the  other 
States  of  the  Union,"  and  it  has  always  bcsn  held  by  the 
General  Land  Office  that  the  grant  extended  only  to  States 
in  existence  at  the  date  of  the  act,  and  that  as  new  States  were 
admitted  additional  legislation  was  needed  to  confer  the  bene- 
fits of  the  swamp  grant  upon  them.6  In  this  construction 
Congress  seems  to  have  concurred,  for  in  1860  we  find  a  spe- 
cial statute  extending  the  swamp  grant  to  the  States  of  Oregon 
and  Minnesota,  which  States  had  been  admitted  subsequent  to 

2  1   Lester's  L.  L.,  542.  4  9     Opinions     Atty.     Gen.     253 ; 

3  Since  the  passage  of  these  acts  Sterling  v.  Jackson,  69  Mich.  488. 
and   prior  to   June   30,   1889,   there  5  Parsons    v.    Comm'rs    S.    &    U. 
has  been  patented  to  fifteen   States  Lands,   9   Wis.   236. 

lands   aggregating  57,099,972   acres.  6  See  Rulings   Commissioner  Gen. 

Eep.  Gen.  Land  Office,  1889.  Land  Office,  Jan.  19,  1874,  and  May 

2,  1871. 


INCEPTION    OF    TITLE.  147 

the  passage  of  the  grant  of  1850.  This  is  undoubtedly  cor- 
rect, as  all  grants  of  the  public  domain  are  in  the  nature  of 
benefits  derived  through  the  original  granting  acts,  designat- 
ing the  character  and  extent  of  the  grants  and  the  manner  in 
which  they  are  to  be  made  effective  and  secure  to  the  grantee. 
Such  benefits  are  usually  bestowed  not  by  general,  but  by  spe- 
cial legislation. 

§  123.  School  Lands.  It  has  always  been  a  cherished 
policy  of  the  government  to  set  apart  and  appropriate  a  por- 
tion of  every  township  for  the  advancement  of  education  in 
the  support  of  common  schools.  Formerly,  one  section  only 
was  devoted  to  this  most  laudable  purpose,  but  in  the  States 
admitted  during  later  years  two  sections  have  been  reserved,7 
usually  sections  16  and  36.  The  practice  of  setting  apart  sec- 
tion 16  is  traceable  to  the  ordinance  of  1785,  being  the  first 
enactment  for  the  disposal  by  sale  of  lands  in  the  Western  terri- 
tory, and  became  a  fundamental  principle  by  the  ordinance 
of  17S7,  which  settled  terms  of  compact  between  the  people 
and  States  of  the  jSTorthwest  Territory  and  the  original 
States.  One  of  the  articles  affirming  that  "  religion,  morality 
and  knowledge  being  necessary  for  good  government  and  hap- 
piness of  mankind,"  declared  that  "  schools  and  the  means  of 
education  should  forever  be  encouraged."      This  principle  was 

7  To     each     organized     Territory,  In  the  act  for  the  organization  of 

after  1803,  was  and  now  is  reserved  the  Territory  of  Oregon,  August  14, 

the  sixteenth  section  for  school  pur-  1S4S,   there    was    inserted   an    addi- 

poses,   which   reservation  is   carried  tional  grant  for  school  purposes  of 

into  grant  and  confirmation  by  the  the     thirty-sixth     section     in     each 

terms    of   the    act    of    admission   of  township,    with    indemnity    for    all 

the    Territory    or    State     into    the  public-land   States  thereafter  to   be 

Union;   the   State  then  becoming  a  admitted,    making    the    reservation 

trustee  for  school   purposes.     These  for    school    purposes    the    sixteenth 

grants  of  land  were  made  from  the  and   thirty-sixth    sections,    or    1,280 

public  domain,   and   to   States   only  acres  in  each  township  of  six  miles 

which    were    known    as    public-land  square      reserved      in      public-land 

States.     Twelve  States,  from  March  States     and     Territories,     and     eon- 

3,      1803,      known      as      public  land  firmed  by  grant  in  terms  in  the  act 

,  received  the  allowance  of  the  of  admission  of  such  State  or  Terri- 

sixtecnth     section     to     August     14,  tory  into  the  Union. 
1848. 


148  ABSTRACTS    OF    TITLE. 

extended,  first  by  congressional  enactment,8  and  afterward  in 
1802,  by  compact  between  the  United  States  and  Georgia,  to 
the  Southwest  Territory. 

The  constancy  with  which  the  government  has  ever  adhered 
to  this  policy  in  the  various  compacts  with  the  people  of  the 
newly  formed  States,  and  the  care  which  Congress  has  mani- 
fested to  prevent  the  accumulation  of  prior  obligations  which 
might  interrupt  it,  fully  display  their  estimation  of  its  impor- 
tance and  value.9  The  reservation  of  these  sections,  in  words 
of  present  grant,  is  made  a  part  of  the  organic  act  on  the  ad- 
mission of  the  State  into  the  Union  and  passes  to  the  State 
the  title  to  the  land  without  further  legislation.  As  the  gov- 
ernment extends  its  surveys,  so  that  the  location  of  the  section 
can  be  ascertained,  the  title  in  the  State  becomes  perfect  and 
complete.10  Where  sections  16  or  36  are  in  whole  or  in  part 
included  in  private  claims,  held  by  titles  legally  confirmed  or 
decided  to  be  valid,  the  State  may  select  their  equivalent  in 
other  unreserved  lands. 

§  124.  Internal  Improvement  Grants.  In  addition  to 
the  grants  hereinbefore  described,  Congress,  from  time  to  time, 
has  made  large  grants  of  the  public  domain  to  the  different 
States,  to  aid  in  the  development  of  the  country  by  the  build- 

8  1  Stat,  at  Large,  550.  In  the  legislation  relating  to  the 

9  See  Cooper  V.  Roberts,  18  How.  admission  of  the  public-land  States 
(U.    S.)     173,    for   an   elaborate   re-       into  the  Union,  from  the  admission 

view  of  this  subject.  of  Ohio  in  1802,  grants  of  two  town- 

10  Cooper  v.  Roberts,  18  How.  ships  of  public  lands,  viz,  46,080 
(U.  S.)  173;  Bucher  V.  Wetherby,  acres  each,  for  university  purposes 
5  Otto  (U.  S.),  517.  There  has  are  enumerated.  Ohio,  Florida, 
been  granted  and  reserved  for  edu-  Wisconsin,  and  Minnesota  are  the 
cational  purposes,  since  the  organi-  exceptions,  each  having  more  than 
zation  of  the  government  and  prior  two  townships  in  area.  These  res- 
to  June  30,  1883,  a  grand  total  of  ervations  in  each  case  require  a 
78,889,839  acres.  Of  this  amount  special  act.  All  school,  university 
67,893,919  acres  have  been  donated  or  agricultural  college  lands  granted 
for  the  support  and  maintenance  of  are  sold  by  the  legislatures  of  the 
the  public  or  common  schools,  the  several  States  or  leased,  and  the 
balance  has  been  variously  given  for  proceeds  of  sale  or  lease  applied  to 
agricultural     and     mechanical     col-  education. 

leges,   seminaries   or   universities. 


INCEPTION    OF    TITLE,  149 

ing  of  railroads,  canals,  and  other  internal  improvements. 
These  grants,  though  local  in  their  nature,  are  all  governed  by 
the  same  general  principles.  The  acts,  as  a  rule,  convey  in 
words  of  present  grant  which  vests  a  fee  simple  title  in  the 
States  to  which  the  lands  are  given,11  and  where,  as  in  case 
of  an  unlocated  railroad,  no  specific  tracts  are  designated,  they 
have  been  held  to  constitute  a  conditional  grant  in  prcesenti 
in  the  nature  of  a  "  float  "  which  does  not  attach  to  any  par- 
ticular parcel  of  the  public  lands  until  the  necessary  determina- 
tive lines  have  been  fixed  upon  the  face  of  the  earth,12  but  upon 
such  definite  location  the  title  to  each  particular  parcel  will  be 
as  complete  as  if  it  had  been  granted  by  name,  number  or  de- 
scription,13 relating  back  to  the  date  of  the  grant.14  The 
same  general  rules  will  also  apply  to  special  grants  for  State 
improvements. 

All  public  grants  are  to  be  construed  most  strongly  against 
the  grantee,  and  this  is  specially  true  of  legislative  grants. 
In  construing  a  congressional  grant,  it  should  always  be  borne 
in  mind  that  the  act  by  which  it  is  made  is  a  law  as  well  as  a 
conveyance,  and  that  such  effect  must  be  given  to  it  as  will 
carry  out  the  intent  of  Congress.  This  intent  can  not  be  de- 
feated by  applying  to  the  grant  the  rules  of  the  common  law, 
which  are  properly  applicable  only  to  transfers  between  pri- 
vate parties,  and  to  the  validity  of  which  there  must  exist  a 
present  power  of  identification  of  the  land  conveyed.  Where 
no  such  power  exists,  instruments  with  words  of  present  grant, 
are  operative,  if  at  all,  only  as  contracts  to  convey,  but  in  the 
grants  under  consideration,  as  in  all  other  cases  of  govern- 
mental conveyances,  the  rules  of  the  common  law  must  yield  to 
the  legislative  will.15 

§  125.     Land  Grants  to  Railroads.     From  the  period  of 


HU.    S.   v.    Perchman,    7    Peters,  R.   Co.    v.   United   States,   92   U.   S. 

51;    U.    S.    v.    Brooks,    10    Howard,  733. 

442;  Godfrey  v.  Bradley,  2  McLean,  HSwann  V.  Lindsey,  70  Ala.  507. 

412.  15  Schulenberg    v.    Harriman,    21 

12  8  Opinions  Atty.  Gen.  244.  Wall.    (U.   S.)    60;   R.  R.  Co.  v.  R. 

13  9   Opinions   Atty.   Gen.   41;   R.  R.  Co.,  97  U.  S.  491. 


150  ABSTRACTS    OF    TITLE. 

the  inauguration  of  the  system  of  land  grants  in  aid  of  internal 
improvements  by  private  corporations  until  the  year  1862,  it 
was  the  invariable  practice  to  make  the  grant  to  the  State, 
which,  in  this  instance,  acted  as  a  trustee  or  transfer  agent, 
conveying  to  the  corporation  the  fee  of  the  land  after  per- 
formance of  conditions.10  The  charter  of  the  Union  Pacific 
R.  R.  effected  a  complete  change  in  this  respect.  Here  the 
grant  was  made  direct  to  the  corporation,  all  intermediaries  be- 
ing avoided,  and  the  precedent  thus  set  has  been  followed  in  a 
large  number  of  grants  made  since  that  time.17 

The  act  of  Congress  granting  the  lands  is  the  inceptive 
measure  of  all  titles  initiated  in  this  manner,  and  forms  the 
first  link  in  the  chain.  The  acts  are  usually  couched  in  words 
of  present  grant,  as  "  that  there  be  and  is  hereby  granted," 
and  when  so  worded  they  constitute  a  conveyance  that  can  only 
be  defeated  by  failure  to  perform  the  conditions  annexed  to 
the  grant.  The  general  right  to  the  land,  subject  to  the  ex- 
ceptions contained  in  the  act,  vests  at  the  date  of  the  passage 
of  the  law,  and,  as  in  the  case  of  other  unlocated  tracts,  at- 
taches to  the  specific  lands  at  the  time  of  filing  the  plat  in  the 

16  March    2,    1833,    Congress    au-  to  be  used  by  the  Government  free 

thorized  the  State  of  Illinois  to  di-  of   toll    or    other   charges,   and    the 

vert   the   canal    grant   of   March    2,  mails  were   to  be  carried  at   prices 

1827,   and    to    construct   a   railroad  to   be   fixed  by  Congress.     This  act 

with    the    proceeds    of    said    lands.  extended   like  terms  and  conditions 

This  was  the  first  Congressional  en-  to  the  States  of  Alabama  and  Mis- 

actment  providing  for  a  land  grant  sissippi    in   aid   of   the  Mobile   and 

in   aid   of  a   railroad,   but  was   not  Ohio    road    which    was    to    connect 

utilized  by  the   State.  with      the      Illinois      Central      and 

The  act  of  September  20,  1850,  branches  —  all  of  which  roads  are 
was  the  first  railroad  act  of  real  im-  now  established, 
portance,  and  initiated  the  system  17  It  is  estimated  that  if  the 
of  grants  of  land  for  railroads  by  lands  embraced  in  limits  of  grants 
Congress  which  prevailed  until  after  to  railroads  wei-e  all  available,  and, 
July  1,  1862.  This  grant  gave  the  that  the  corporations,  State  and 
State  of  Illinois  alternate  sections  National,  built  their  roads,  and 
of  land  (even-numbered)  for  six  complied  with  the  laws,  it  would  re- 
sections in  width  on  either  side  of  quire  215,000,000  of  acres  of  the 
the  road  and  branches,  being  a  public  domain  to  satisfy  the  re- 
grant  of  specific  sections.  The  quirements  of  the  various  laws, 
road   was  to  be  a  public  highway,  Actual    selections,    forfeitures,    etc., 


INCEPTION    OF    TITLE.  151 

General  Land  Office.  After  this  has  been  accomplished  the 
title  of  the  corporation  becomes  fully  vested  and  complete.18 

§  126.  Public  Highways.  By  act  of  Congress,  in  the 
year  18 66,19  the  right  of  way  was  granted  for  the  construction 
of  highways  over  public  lands  not  reserved  for  public  use,  and 
in  nearly  all  of  the  States  containing  public  land  a  special 
enactment  declares  that  all  section  lines,  as  far  as  practicable, 
shall  be  and  remain  public  ways.  The  effect  of  these  laws, 
taken  together,  is  to  locate  and  dedicate,  by  express  public 
grant,  a  strip  of  land  along  each  section  line  for  highway  pur- 
poses, and  subsequent  settlers  and  purchasers  acquire  title  sub- 
ject to  the  public  use  in  this  particular.20  Where  the  land  had 
passed  into  private  ownership  prior  to  the  enactment  of  these 
laws  their  effect  would  be  nothing  more  than  an  assertion  of 
the  right  of  eminent  domain,  and  should  the  strip  be  actually 
taken  the  rule  of  compensation  would  undoubtedly  apply. 

§  126a.  Private  Land  Claims.  Embraced  in  the  acces- 
sions which  at  different  times  have  been  made  to  the  National 
territory,  are  numerous  individual  foreign  titles  having  their 
origin  under  the  governments  preceding  the  United  States  in 
sovereignty.  To  these  the  name  "  Private  Land  Claims  "  has 
been  assigned.  They  are  usually  founded  on  written  grants 
of  some  kind,  yet  they  also  exist  even  as  nascent  claims  resting 
upon   actual    settlement   before    the    change    of   government.21 

have   greatly   reduced   this   amount.  Detroit,  pass  over  to  Green  Bay  and 

See  Rep.   Public  Land   Commission,  Prairie  du  Chien  in  Wisconsin,  enter 

1883.  into   Indiana   at   the   old   Vincennes 

18  South  Pac.  R.  R.  Co.  v.  Dull,  post,  down  the  eastern  side  of  the 
22  Fed.  Rep.  489.  Mississippi,    and    in    Illinois    reach 

19  Sec.  2477  Rev.  Stat.  U.  S.  Peoria,  Prairie  du  Rocher,  and  the 

20  Wells  V.  Pennington  county,  2  Kaskaskias,  there  resting  on  an- 
S.  Dak.   1.  cient  British  and  French  grants,  and 

21  Turning  to  the  national  map  it  all  within  the  limits  of  the  United 
will  be  seen  that  these  private  States  according  to  the  treaty  of 
claims  or  grants,  marking  the  prog-  limits  in  1783.  Thence  such  ancient 
ress  of  early  explorations  and  set-  claims  are  found  in  descending  the 
tlements  on  this  continent,  begin  on  Mississippi  under  other  forma  of 
the  northern  shores  of  the  Michigan  grant  and  granting  officers,  to  the 
lower  peninsula,  come  down  to  the  Gulf  of  Mexico,  extending  into  the 
old   French   settlement   at  ami   near  southern  portions  of  Mississippi  and 


152  ABSTRACTS    OF    TITLE. 

These  titles  have  been  scrupulously  respected  by  the  United 
States  and  every  effort  has  been  made  to  secure  to  individuals 
all  their  rights  which  originated  under  former  governments. 
The  principle  has  been  rigorously  maintained  that  though  the 
sovereignty  may  change  the  rights  of  private  property  remain 
unaffected,22  and  in  this  respect  no  nation  has  shown  a  higher 
sense  of  justice  or  a  more  liberal  spirit.  Frequently  these 
claims  are  confirmed  by  the  United  States  and  thereupon  pat- 
ents of  confirmation  issue,23  but  there  are  numerous  holdings, 
particularly  in  States  east  of  the  Mississippi,  which  rest  en- 
tirely on  the  old  French  and  Spanish  grants. 

§  127.  Who  May  Acquire  Title.  The  policy  of  the  gen- 
eral government  in  relation  to  the  sale  of  the  public  lands  has 
ever  been  most  liberal,  yet  a  few  restrictions  have  been  im- 
posed in  certain  cases  which  it  may  be  well  to  notice.  The 
general  land  system  makes  little  or  no  discrimination,  but  to 
this  has  been  superadded  a  specific  new  fact:  the  sale  or  dis- 
posal of  certain  lands,  in  certain  limited  quantities,  at  a  re- 
Alabama,  and  scattering  all  over  with  Mexico,  and  what  is  known  as 
both  East  and  West  Florida,  cross-  the  Gadsden  purchase  of  December 
ing  the  Mississippi  and  following  30,  1853.  These  claims  are  for  ir- 
the  shores  of  the  Gulf,  they  are  regular  tracts,  illy  denned,  bounded 
found  thickly  scattered  over  Louisi-  by  streams  or  marked  by  headlands, 
ana,  existing  in  Arkansas,  and  in  or  natural  objects  in  many  cases 
great  numbers  in  Missouri.  since  removed.     They  were  made  for 

In  those  localities  south  of  the  agricultural,  mining,  stock-raising, 
thirty-first  degree,  east  of  the  Mis-  or  colonization;  in  all  sizes  from  a 
sissippi,  to  the  Perdido,  and  those  village,  lot  to  a  million-acre  tract, 
west  of  the  Mississippi  to  the  pres-  The  records  kept  by  the  granting 
ent  State  of  Missouri,  inclusive,  authorities  of  Spain  and  Mexico 
the  claims  are  founded  on  Spanish  have  been  a  serious  hindrance  in 
and  French  titles,  under  treaty  of  some  cases  toward  a  satisfactory 
1803  and  ancient  settlements;  those  solution,  being  frequently  of  doubt- 
east  of  the  Perdido,  in  the  Floridas,  ful  meaning.  See,  Report  Public 
upon  Spanish  titles  under  the  treaty  Land  Commission,  1883. 
of  1819,  and  under  old  settlements.  22  United  States  V.  Percheman,  7 

In    Xew    Mexico,    Colorado,    Ari-       Pet.    (U.  S.)   51;  Soulard  V.  United 
zona,  and  California,  as  we  advance       States,  4  Pet.    (U.  S.)   511. 
westward,  there  exist  ancient  Span-  23  See     §     132     "  Confirmations," 

ish     titles,     municipal     and     rural,       post. 
claimed    under    the   treaty    of    1848 


INCEPTION    OF    TITLE..  153 

duced  price  or  on  certain  specific  conditions,  for  personal  use 
and  for  actual  settlement  and  cultivation  only,  under  a  series 
of  acts  known  as  pre-emption,  graduation,  homestead  acts,  etc. 
The  benefits  of  these  acts  are  designed  for  actual  settlers  and 
exclude  all  persons  not  sui  juris,  such  as  married  women,  mi- 
nors, and  others  who  are  legally  incapable  of  contracting ;  mean- 
ing of  course  married  women  and  minors  not  unemancipated, 
and  constituting  members  of  the  family  of  the  husband  or 
father.24  The  general  law,  in  so  far  as  regards  the  United 
States,  undoubtedly  enables  aliens  to  purchase  the  public  lands 
for  cash  and  at  the  ordinary  price,  subject  only  to  such  limita- 
tion as  the  particular  States  may  enact.25  The  benefits  of  the 
special  laws  above  referred  to,  however,  apply  only  to  persons 
who  are  citizens  of  the  United  States,  or  such  as  have  filed 
their  declarations  to  become  citizens,  as  required  by  the 
naturalization  laws.28 

§  128.  Inceptive  Measures  in  the  Abstract.  The  fore- 
going brief  and  fragmentary  review  of  the  inceptive  stages 
of  title,  but  faintly  expresses  the  vastness  of  our  public  land. 
system  and  conveys  no  adequate  idea  of  its  many  intricate  de- 
tails produced  by  an  almost  innumerable  number  of  acts  of 
local  or  temporary  application,  together  with  their  attendant 
rulings,  instructions  and  decisions  by  the  Interior  Department, 
and  adjudicated  cases.27  A  full  and  accurate  knowledge  of 
the  United  States  land  system  is  of  the  utmost  importance  to 
both  examiner  and  counsel,  and  though  it  is  not  usual  or  nec- 
essary to  incorporate  any  considerable  portion  of  the  incep- 
tive measures  in  the  abstract,  yet  when  it  is  remembered  that 
the  validity  of  title  to  each  and  every  tract  carved  from  the 
public  domain,  depends  upon  the  accuracy  with  which  the  first 
details  of  transfer  from  the  government  to  its  grantee  were  exe- 
cuted, the  importance  of  exercising  critical  care  at  this  stage 
of  the  abstract  will  be  apparent.28 

24  5  Stat,  at  Large,  458.  Land  Laws  for  a  full  exposition  of 

25  10  Stat,  at  Large,  649.  these  acts  and  decisions. 

26  7  Opinions  Att'y  Gen  351.  28  A  grant  of  public  lands 'cannot 

27  See     Lester's     or      Zabriskie's  be  impeached   collaterally   unless   it 


154  ABSTRACTS    OF    TITLEi 

A  brief  note  of  the  entry  should  always  form  the  initial 
statement  of  the  abstract,  or  when  originating  in  grant,  a  cor- 
responding statement  to  that  effect,  the  degree  of  fullness  of  nar- 
ration being  optional  with  the  examiner.  The  various  steps  un- 
der the  pre-emption  laws  prior  to  entry  are  unimportant,  and 
shed  no  light  on  the  title  after  the  certificate  has  issued.  But 
with  homestead  entries  it  is  different.  Here  the  certificate  does 
not  issue  until  five  years  after  entry  and  during  this  period 
eventful  changes  may  occur.  In  case  the  interest  should  be  sold 
for  the  benefit  of  infant  heirs,  a  certificate  issues  to  the  pur- 
chaser, and  the  abstract  should  show  substantially  all  the  pro- 
ceedings from  entry  to  issue  of  certificate.  All  the  needed  data 
can  be  procured  by  obtaining  a  transcript  of  the  Register's 
tract  book,  something  no  well  appointed  abstract  office  can  dis- 
pense with.  The  tract  book,  further,  has  all  the  dignity  of 
other  recorded  evidence  in  matters  affecting  title.29  In  titles 
originating  in  grant  or  confirmation  and  not  followed  by  patent, 
much  more  particularity  is  requisite  than  when  the  patent  is 
relied  on  as  the  foundation  of  title,  and  a  corresponding  full- 
ness of  narration  and  detail  is  necessary. 

is  void  upon  its  face.     But  it  may  29  Russell  f .   Whitehead,  4  Scam, 

be   assailed  in  a  direct  proceeding.       (111.)    7. 


CHAPTER  IX. 


INITIAL    STATEMENTS. 


§  129.  The  government  entry.  §  133.  Town  site  entries. 

130.  The   donative   act.  134.  The   Receiver's   receipt. 

131.  Continued — Section   sixteen.  135.  State  lands. 

132.  Confirmations.  136.  The  root  of  title. 

§  129.  The  Government  Entry.  Whenever  the  abstract 
goes  back  to  the  foundation  of  the  title,  it  should  always  com- 
mence with  a  brief  note  of  the  original  entry  of  the  land  at  the 
United  States  Land  Office  of  the  district  in  which  the  same  is 
located,  giving  the  name  of  the  person  so  entering  it,  together 
with  the  date,  and  any  other  particulars  that  ntey  appear  and 
are  pertinent.  Should  the  entry,  from  any  cause,  have  been 
canceled  and  re-entry  made,  that  fact  should  also  be  noticed, 
giving  date  of  cancellation  and  re-entry.  Where  parties  have 
negligently  omitted  to  record  the  Receiver's  receipt  or  the  pat- 
ent,1 as  is  frequently  the  case,  this  forms  the  only  item  of  In- 
formation relative  to  the  origin  of  the  title,  and  will  be  of 
great  service  to  counsel  in  his  investigations,  as  well  in  deter- 
mining the  rights  of  the  parties  as  in  supplying  missing  links 
of  evidence.  The  entry  itself,  if  valid,  gives  a  right  to  the 
Register's  certificate  of  purchase,  and  creates  an  equitable  in- 
terest in  the  land.2  It  is  useful  in  showing  the  inception  of 
title,  and  forms  a  symmetrical  initial  to  the  history  which  fol- 
lows. No  particular  form  is  necessary  so  long  as  the  facts  are 
substantially  stated,  and  the  following  example  will  suffice: 

The  northeast  quarter  of  Section  six,  Town  one,  north,  Range 
twenty-three,  east  of  the  3d  Principal  Meridian,  was  entered  by 

i  The  recording  laws  of  the  States,  though  provision  therefor  is  always 
as   a   general    rule,    do   not   require      made. 

the    recording    of    the    Receipt,    al-  2  Levi  v.  Thompson,  4  How.    (U. 

S.)   17. 

155 


156  .         ABSTRACTS    OF    TITLE. 

Thomas  J.  Holmes,  May  11/-,  1839,  at  the  United  States  Land 
Office  at  Milwaukee,  Wisconsin.  Certificate,  No.  31/1.  (Cer- 
tificate canceled,  and  re-entry  made,  June  10,  1339.  Certifi- 
cate, No.  SOO.) 

This,  of  course,  applies  only  when  the  land  has  been  en- 
tered in  the  usual  manner,  and  never  includes  sections  16  or 
36,  or  such  other  lands  as  may  have  been  selected  by  the  State 
in  lieu  thereof,  and  which  are  commonly  known  as  the  "  school 
sections."  Nor  would  lands  donated  for  specific  purposes,  as 
to  assist  in  the  construction  of  internal  improvements,  etc.,  be 
susceptible  of  this  treatment.  In  such  cases  a  recital  of  the 
original  grant  should  constitute  the  initial  statement  of  the 
abstract. 

§  130.  Tlie  Donative  Act.  When  the  inception  of  title 
is  through  some  grant  of  Congress,  though  the  immediate  grants 
are  from  the  State,  the  preliminary  measures  by  which  the 
State  acquired  its  right  to  convey  should  appear  upon  the  ab- 
stract. A  grant  of  public  land  by  statute  is  the  highest  and 
strongest  form  of  title  known  to  our  law,3  and  vests  in  the 
grantee  all  the  title  which  the  United  States  had  at  the  time 
of  the  grant  or  may  afterward  acquire;  subject,  however,  to 
the  conditions  and  restrictions  appended  thereto,  and  this, 
although  a  patent  may  afterward  issue.4  The  original  grant, 
or  so  much  thereof  as  may  be  necessary  to  show  the  conveyance, 
should  therefore  form  the  initial  statement  of  an  abstract  of 
title  to  land  so  derived.  Coupled  with  this  should  appear  so 
much  of  the  official  action  of  the  State  authorities  as  will  show 
an  acceptance  on  their  part  and  a  compliance  with  such  condi- 
tions as  may  be  imposed  by  the  granting  act.  These  need  not 
be  set  out  at  length ;  brief  references  are  sufficient,  provided  all 
the  essential  steps  are  substantially  noted.  Public  grants  to 
States  are  usually  of  specified  quantities  but  of  unascertained 

3  11     Opinions     Atty.     Gen.  47;  Hall  v.  Jarvis,  65   111.  302;   Challe- 

Dousman  v.  Hooe,  3  Wis.  466.  foux  V.  Ducharme,  4  Wis.  554;  but 

■i  !)   Opinions     Att'y     Gen.  346;  see  Foley  V.  Harrison,  15  How.  433. 

Thompson    v.    Prince,    67    111.  281; 


INITIAL,    STATEMENTS.  157 

location,  which  is  determined  by  selection  in  accordance  with 
the  terms  of  the  grant.  A  statement  similar  to  the  following 
should  preface  the  abstract  in  such  cases : 

Section  seven,  Town  thirty-nine  north,  Range  fourteen  east 
of  the  3d  Principal  Meridian,  with  other  lands,  was  selected 
by  tlte  Commissioner  of  the  General  Land  Office,  under  the 
direction  of  the  President,  as  a  portion  of  those  tracts  granted 
by  the  United  States  to  the  State  of  Illinois  by  Act  of  Con- 
gress approved  March  2,  1S27,  entitled  "An  Act  to  grant  a 
quantity  of  land  to  the  State  of  Illinois  for  the  purpose  of  aid- 
ing in  opening  a  Canal  to  connect  the  waters  of  the  Illinois 
River  with  those  of  Lake  Michigan." 

Selection  approved  by  the  President  May  21,  1830. 

These  statements  are  usually  short,  from  the  fact  that  the 
title  at  this  stage  is  usually  unquestioned,  and  in  the  older 
States  has  acquired  all  the  elements  of  stability  and  perma- 
nence from  long  acquiescence  and  the  effluxion  of  time.  The 
examiner  will  finding  no  difficulty  in  adapting  internal  im- 
provement or  railroad  grants  from  the  hints  above  given,  and 
further  illustrations  are  not  deemed  necessary. 

A  selection  by  the  State  has  the  effect  of  an  entry  of  the  land, 
and  withdraws  the  tract  from  further  disposal,  unless  the  selec- 
tion shall  be  subsequently  rejected,  subject,  of  course,  to  the 
perfection  of  any  pre-existing  valid  pre-emption  claims ;  5  and 
when  a  particular  parcel  of  land  is  selected  by  a  State,  through 
its  officers  or  other  authorized  agents,  as  a  part  of  a  gross 
acreage  theretofore  granted,  and  such  selection  and  location  are 
approved  by  the  United  States,  the  title  becomes  perfect  and 
attaches  to  the  land  selected.6 

§  1.31.  The  Same  —  Section  Sixteen.  The  immediate 
title  to  section  sixteen,  and  in  States  west  of  the  Missouri  river 
t<>  aection  thirty-six  as  well,  is  derived  from  the  State,  although 

■'  See    Instructions    Commr.    Gen.  6  Megerle  v.  Ashe,  27  Cal.  322. 

Land  Office,  Jan.  5,  1872. 


158  ABSTRACTS    OF    TITLE. 

the  original  title  comes  from  the  Federal  Government.  These 
sections,  in  pursuance  of  the  cherished  policy  of  the  govern- 
ment, are  specifically  appropriated  to  the  use  of  common  schools, 
which  appropriation  or  reservation  forms  a  part  of  the  compact 
by  which  the  State  is  admitted  into  the  Union.  When  the 
lands  are  surveyed  and  marked  out  the  possessory  right  of  the 
State  at  once  attaches,  and,  if  there  be  no  legal  impediment, 
becomes  a  legal  title.7  Where  such  section  has  been  sold  or 
otherwise  disposed  of  by  the  government,  other  lands,  equiva- 
lent thereto  and  as  contiguous  as  may  be,  are  granted  in  their 
stead,  such  selection  being  known  as  "  lieu  lands  " ;  the  act  of 
selection  of  a  section  in  lieu  of  section  sixteen,  is  that  by  which 
the  tract  becomes  appropriated  for  school  purposes.8  A  for- 
mal introduction,  therefore,  of  land  in  sections  sixteen  or  thir- 
ty-six, would  read  somewhat  as  follows : 

Section  sixteen,  Town  one  north,  Range  thirty-one  east  of 
the  second  Principal  Meridian,  ivas  granted  by  the  United 
States  to  the  State  of  Michigan  for  the  use  of  schools,  by  act 
of  Congress,  June  23,  1836,  providing  for  the  admission  of 
Michigan,  as  a  State  of  the  Union,  and  accepted  by  the  State 
of  Michigan  by  act  of  Legislature  approved  July  25,  1836. 

Where  section  sixteen,  as  returned  by  the  survey,  is  found  to 
be  occupied  by  pre-emption  settlements  made  under  the  law 
permitting  settlements  on  unsurveyed  lands,  or  where  the  land 
has  been  otherwise  disposed  of,  or  prior  rights  have  attached, 
and  a  selection  of  lieu  lands  is  made,  the  preliminary  note  must 
show  the  facts  of  selection,  confirmation,  etc.,  necessary  to 
bring  it  within  the  law  vesting  the  title,  thus : 

The  northeast  quarter  of  Section  seventeen,  Town  ten  north, 
Range  twenty-two  east  of  the  Fourth  Principal  Meridian,  was 
selected  by  the  Secretary  of  the  Treasury  8a  in  lieu  of  land  in 

7  Cooper  v.  Roberts,  18  How.  (U.  8a  Under  the  present  practice,  se- 
S.)    173.  lections   from  other  public  lands  asi 

8  Hedrick  V.  Hughes,  15  Wall.  indemnity  for  deficiencies  in  sen- 
(U.  S.)    123.  tiona  16  and  36  and  fractional  town- 


INITIAL    STATEMENTS.  159 

Section  sixteen,  by  virtue  of  an  act  of  Congress,  appro  red  June 
15,  18kb>  and  entitled  "An  Act  to  authorize  the  selection  of 
certain  school  lands  in  the  Territories  of  Florida,  Iowa  and 
Wisconsin"  and  was  granted  by  the  United  States  to  the  State 
of  Wisconsin  for  the  use  of  schools,  by  act  of  Congress  approved 
August  6,  lSJf.6,  entitled  "  An  Act  to  enable  the  people  of  Wis- 
consin  Territory  to  form  a  Constitution  and  State  government, 
and  for  the  admission  of  such  State  into  the  Union,"  and  ac- 
cepted by  the  State  of  Wisconsin  by  the  Constitution  framed 
February  1,  lSJ^S.9 

§  132.  Confirmations.  In  the  West  and  Southwest,  the 
title  to  land  rests,  in  many  cases,  upon  confirmed  claims  of  in- 
choate rights  derived  from  the  governments  which  owned  the 
land  prior  to  the  conquest  or  cession,  the  method  of  confirma- 
tion differing  considerably  with  the  locality.  The  rights  of 
parties  claiming  under  titles  from  the  Spanish  or  Mexican 
Governments  are  determined  by  special  commissions  appointed 
for  the  purpose,  or  by  the  United  States  courts,  and  such  deter- 
minations are  usually  followed  by  patent. 

Mexican  grants  were  made  by  the  governors  of  the  Terri- 
tories in  conformity  with  laws  on  that  subject,  and  a  docu- 
ment signed  by  the  governor  served  as  the  basis  of  title,  while 
maps  of  the  lands  granted  and  circumstantial  reports  were  pre- 
served in  the  archives  of  the  supreme  government.     A  person 

ships  under  acts  of  May  20,  1826,  the  same  is  transmitted  to  the  gov- 
and  February  26,  1859,  are  made  ernor  of  the  State  in  which  the  se- 
by  agents  appointed  by  the  respec-  lections  are  made,  and  a  copy  there- 
tive  States,  which  selections  are  of  transmitted  to  the  local  office 
filed  in  the  local  offices  of  the  dis-  from  which  the  selections  are  re- 
trict  in  which  the  land  is  situated,  ceived,  to  be  placed  on  file,  and  the 
and  if  found  to  be  correct  are  cer-  approvals  to  be  noted  on  its  rec- 
tified to  the  General  Land  Office  by  ords.  By  the  approval  of  the  See- 
the register  of  the  local  office  where  retary,  the  fee  is  passed  to  the 
filed.  If,  upon  examination  by  the  State.  See  sec.  2449  Rev.  Stat., 
Commissioner,   the   same   are   found  U.  S. 

to  inure  to  the  State,  a  list  is  made  9  Ordinarily    no    record    evidence 

out   and   certified   to   the   Secretary  of  the  fact  of  selection   is  required 

of    the    Interior    for    his    approval.  beyond  the  entries   in   the  books   of 

Win  ii  approved,  a  certified  copy  of  the  register  of  the  local  land  office. 


1G0  ABSTRACTS    OF    TITLE. 

claiming  under  these  grants  is  entitled  to  a  patent  from  the 
United  States  whenever  his  claim  has  been  confirmed  by  the 
commissioners,  the  District  Conrt,  or  the  Supreme  Court,  pro- 
vided his  proof  of  confirmation  is  accompanied  by  a  survey 
certified  by  the  surveyor  general.  But  neither  the  decree  of 
the  court,  nor  the  survey,  nor  the  patent,  is  conclusive  on  any- 
body but  the  government  and  the  patentee.  The  rights  of  third 
parties  are  expressly  saved  by  act  of  Congress,  and  those  who 
claim  a  title  adverse  to  the  patentee  have  still  a  chance  to  es- 
tablish it  in  the  proper  courts  of  the  State.10  Whenever  prac- 
ticable, the  decree  of  confirmation,  or  reference  to  it,  together 
with  a  note  of  the  survey  and  approval  of  the  surveyor  general, 
should  form  the  initial  statement  of  the  abstract  and  precede 
the  patent. 

The  territory  lying  north  of  the  Ohio  River  and  west  of  the 
Alleghanies  and  extending  to  the  Mississippi,  was  claimed  by 
Virginia  previous  to  1776  to  be  within  its  chartered  limits,  but 
was  not  reduced  to  its  possession  until  the  war  of  the  Revolution. 
Previous  to  that  time,  however,  numerous  settlements  had 
been  made  within  that  portion  of  the  territory  which  at  pres- 
ent comprises  the  States  of  Indiana  and  Illinois,  consisting 
principally  of  French  inhabitants  from  Canada,  who  held  the 
lands  they  occupied  under  concessions  from  French  and  Eng- 
lish authorities.  The  possession  and  titles  of  these  people  were 
respected  by  the  State  of  Virginia,  and  on  its  cession  of  the 
territory  to  the  United  States  it  expressly  stipulated  for  their 
confirmation,  which  was  afterward  effected  by  suitable  legis- 
lation. 

In  the  matter  of  pre-existing  titles,  the  United  States  has 
never  asserted  anything  more  than  a  sovereign  right  over  the 
subject.  His  property  rights  in  and  to  the  soil  have  never  been 
interfered  with,  and  a  patent  adds  nothing  to  the  force  of  a 
confirmation.11      It  is  of  value  as  record  evidence  of  the  pos- 

10  See  Instructions  and  Opinions,  n  Langdeau   v.    Hanes,    21    Wall. 

Atty.   Gen.   Sept.   29,   1859,   Nov.   9,  (U.    S.)    521;    Ryan    v.    Carter,    93 

1859;   Moore  V.   Wilkinson,   13   Cal.  U.    S.    78. 
478. 


INITIAL   STATEMENTS.  161 

session  and  title  of  the  ancestor,  and  of  the  recognition  and  con- 
firmation of  such  title  by  the  United  States.  It  obviates  con- 
troversies at  law  respecting  the  land,  and  becomes  an  instru- 
ment of  quiet  and  security.  Founded  as  it  is  upon  a  survey 
of  the  government,  it  removes  all  doubts  as  to  the  boundaries 
of  the  tract,  which  always  arises  when  their  establishment  rests 
on  uncertain  evidence,  yet  it  adds  nothing  to  the  interest  vested 
by  the  confirmation. 

In  the  legislation  of  Congress,  a  patent  has  a  double  ope- 
ration. It  is  a  conveyance  by  the  government  when  the  gov- 
ernment has  any  interest  to  convey,  but  where  it  is  issued  upon 
the  confirmation  of  a  claim  of  previously  existing  title  it  is 
merely  documentary  evidence,  having  the  dignity  of  a  record, 
of  the  existence  of  that  title,  or  of  such  equities  respecting  the 
claim  as  justify  its  recognition  and  confirmation  by  the  United 
States.  The  instrument  is  not  the  less  efficacious  as  evidence 
of  previously  existing  right,  because  it  also  embodies  words  of 
release  or  transfer  from  the  government.12 

§  133.  Town  Site  Entries.  It  frequently  happened  that 
the  advancing  tide  of  immigration,  not  only  pushed  forward 
the  adventurous  pioneer  and  agriculturist  beyond  the  line  of 
the  public  surveys,  but  in  many  cases  whole  communities  set- 
tled and  formed  a  town  or  village.  These  settlements,  some- 
times on  surveyed  and  sometimes  on  unsurveyed  lands,  have 
been  provided  for  by  several  acts  of  Congress.  The  first  act, 
approved  July  1,  1864,13  provided  for  the  founding  of  cities 
or  towns  upon  the  public  domain,  and  for  entering  the  land 
upon  which  cities  and  towns  had  already  been  founded.  This 
was  supplemented  by  the  act  of  March  3,  18G5,  which  pre- 
scribed rules  where  the  lots  were  of  different  dimensions,  and 
not  uniform.     A  further  act  approved  March  2,  1SG7,  author- 

12 Langdeau   v.    Hanes,   21    Wall.  above   referred  to.     Under   the   for- 

(U.   S.)    521;    Morrow  v.   Whitney,  mer    system    no    title    could    be    se- 

5  Otto    (U.  S. ),  551.  cured    to    town    property    until    the 

13  A  town   site   law   with   a   very  locality  had   been   embraced  by   the 

restricted  application  was  passed  in  general    system    of    public    surveys. 
1844,  but  was  repealed  by   the  act 
11 


162  ABSTRACTS    OF    TITLE. 

ized  the  entry  of  public  lands,  settled  upon  and  occupied  as 
town  sites  in  trust  for  the  several  use  and  benefit  of  the  occu- 
pants thereof  in  prescribed  quantities  according  to  the  number 
of  inhabitants,  respectively,  in  said  towns.  It  will  thus  be 
seen  that  two  methods  exist  of  acquiring  title  to  land  in  town 
sites  at  the  inception  of  the  town. 

By  the  first  method  a  privilege,  both  of  purchase  on  sale  and 
pre-emption  at  minimum  figures,  is  granted,  provided  certain 
preliminary  conditions  are  complied  with.  The  requisites  con- 
sist of  filing  with  the  recorder  a  plat  or  map  of  the  town,  de- 
scribing its  exterior  boundaries  according  to  the  lines  of  the 
public  surveys,  when  said  surveys  have  been  executed.  The 
map  must  also  exhibit  the  name  of  the  city  or  town ;  the  streets, 
squares,  etc.,  together  with  the  size  and  measurement  of  each 
municipal  subdivision.  The  map  must  further  be  verified  by 
the  oath  of  the  party  acting  for  or  on  behalf  of  the  town.  When 
the  town  is  within  the  limits  of  an  organized  land  district,  a 
similar  copy  must  be  filed  with  the  Register  and  Receiver,  and 
a  copy  must  be  forwarded  to  the  General  Land  Office,  within 
one  month  after  filing  with  the  recorder.  Under  the  provisions 
of  this  act  patents  issue  for  all  lots,  the  price  of  the  lots  be- 
ing graded  by  size,  location,  etc.14  The  second  method  is  un- 
der the  act  of  IS 67,  which  grants  to  the  inhabitants  of  cities 
and  towns  on  the  public  lands  the  privilege  of  entering  the  lands 
occupied  as  town  sites  at  the  minimum  price  of  $1.25  per  acre. 
The  entry  is  made  by  the  corporate  authorities  of  such  towns 

14  The  first  method  limits  the  ex-  Interior  may  order  from  time  to 
tent  of  the  area  of  the  city  or  town  time,  as  the  municipal  property  may 
to  640  acres,  to  be  laid  off  into  lots,  increase  or  decrease,  after  at  least 
and  which,  after  filing  in  the  Gen-  three  months'  notice, 
eral  Land  Office  the  transcript,  state-  A  privilege,  however,  is  granted 
ment,  and  testimony  required  by  to  any  actual  settler  upon  any  one 
law,  are  to  be  offered  at  public  sale  lot  of  pre-empting  that,  and  any 
to  the  highest  bidder,  at  a  mini-  additional  lot  on  which  he  may 
mum'  of  ten  dollars  for  each  lot.  have  "  substantial  improvements," 
Lots  not  thus  disposed  of  are  made  at  said  minimum,  at  any  time  be- 
thereafter  liable  to  private  entry  at  fore  the  day  fixed  for  the  public 
said  minimum,  or  at  such  reason-  sale, 
able   price  as   the   Secretary   of  the 


INITIAL    STATEMENTS.  163 

and  cities,  or  by  the  judges  of  the  county  courts  acting  as 
trustees  for  the  occupants  thereof,  according  to  their  respective 
interests.  Either  method  may  be  resorted  to,  but  the  inhabit- 
ants are  limited  to  one  or  the  other  of  the  modes  prescribed. 

The  preliminary  measures  attending  the  inception  of  the 
title  of  town  and  city  property  when  acquired  under  the  acts 
above  noted,  should  appear  with  reasonable  degree  of  detail.  If 
by  the  former  method,  the  plat,  or  so  much  as  may  be  necessary 
to  show  the  property  in  question,  should  be  given.  The  pre- 
liminary statement  in  this  case  would  consist,  in  addition  to 
the  plat,  of  a  resume  of  the  steps  taken,  with  dates,  etc.  In 
the  latter  case  it  would  differ  but  slightly  from  an  ordinary 
entry.1 5 

§  134.  The  Receiver's  Receipt.  The  receipt  issued  by 
the  Receiver  of  a  district  land  office,  though  constituting  no 
title,  is  evidence  of  an  equitable  interest,  which,  in  many  of 
the  States,  is  accorded  a  dignity  and  effect  equal  to  a  com- 
plete investiture  by  patent.  Upon  the  strength  of  this  receipt 
large  investments  are  frequently  made  and  great  improvements 
commenced,  while  the  land  often  passes  through  many  hands 
before  a  patent  has  been  issued.  In  many  cases  the  patent  is 
never  called  for  or  formally  delivered,  the  receipt  being  relied 
upon  as  sufficient  evidence  of  title  to  warrant  the  largest  ex- 
penditures and  the  most  ample  covenants  of  title.16 

In  a  certain  sense  this  is  true ;  for  though  the  patent  is  the 
superior  and  conclusive  evidence  of  legal  title,17  yet  the  receipt 
so  far  precludes  the  government  as  to  invalidate  a  second  sale 
of  the  land,  and  the  patent,  when  issued,  by  relation  extends 
back  to  the  time  of  the  purchase  so  as  to  cut  off  intervening 

15  See  acts  above  noted;  13  U.S.  the  purchaser  inures  to  the  benefit 
Stat,  at  Large,  343;  13  U.  S.  Stat.  of  the  grantee  under  a  deed  exe- 
at Large,  529;  Instructions  Com-  cuted  before  the  patent  issued: 
missioner  Aug.  20,  1864;  Apr.  26,  Magruder  v.  Esmay,  35  Ohio  St. 
1865;   Sept.  21,  1868.     Consult  also  221. 

Lester's   or  Zabriskie's  Land  Laws.  it  Bagnell    v.    Broderick,    13    Pet. 

16  A  patent  issued  in  the  name  of       436. 


164 


ABSTRACTS    OF    TITLE. 


claimants.18  In  the  courts  of  the  United  States,  however,  an 
equitable  title,  however  strong,  can  not  be  set  up  at  law  to  de- 
feat the  legal  title  by  patent,19  and  an  abstract  which  fails  to 
disclose  such  instrument  reveals  a  vital  defect  that  should  deter 
a  purchaser  from  consummating  the  sale  until  it  has  been  reme- 
died. The  receipt  of  the  receiver,  however,  is  prima  facie 
evidence  that  the  law  has  been  complied  with,20  and  under  the 
rulings  of  State  courts  has  been  held  to  convey  the  entire  bene- 
ficial interest  in  the  land,  leaving  nothing  in  the  government 
but  a  naked  trust  of  the  fee,21  while  it  establishes  in  the  per- 
son entitled  to  it  a  right  to  the  possession  as  against  one  who 
shows  no  title.22  On  the  other  hand,  the  doctrine  of  caveat 
emptor  applies  with  peculiar  force  to  purchasers  from  an  en- 
tryman  and  the  government  always  has  it  within  its  power  to 
cancel  all  entries  of  public  land  at  any  time  before  patent  issues 
thereon.23 

The  instrument  is  very  informal,  and  its  main  provisions 
may  be  shown  as  follows: 


Receiver  24 

to 

William  Robinson. 


Duplicate  receipt,  No.  5,08k. 
Dated  May  1,  1839. 
Recorded  May  31,  1839. 
Volume  "  A  "  of  deeds,  page  208. 


Acknowledges  payment  in  full  ($190.00)  for  the  northeast 
quarter  of  Section  ten,  Town  one  north,  Range  twenty-three, 
east  of  3d  P.  M.,  Milwaukee  land  district. 


is  Stark  v.  Starrs,  6  Wall.  402 
Magruder  v.  Esniay,  35  Ohio  St 
221. 

io  Baird  v.  Wolf,  4  McLean,  549 
Hooper  v.  Scheimer,  23  How.  235 
Bagnell   v.    Broderick,    13   Pet.   436 

20  Allison  V.  Hunter,   9  Mo.  402 

21  Waters  v.  Bush,  42  Iowa,  255 
and  see  Worth  v.  Branson,  98  U.  S 
118. 

22  McDonald  v.  Edmonds,  44  Cal 
328. 


23  Jones  V.  Meyers,  2  Idaho,  793; 
Hosmer  v.  Wallace,  47  Cal.  461; 
Randall  V.  Edert,  7  Minn.  450;  Bel- 
lows v.  Todd,  34  Iowa,  18. 

24  If  desired,  say  "  United  States, 
to,"  etc.  The  better  practice,  how- 
ever, is  as  shown  in  the  text,  as  the 
instrument  does  not  purport  to  be 
anything  more  than  an  acknowledg- 
ment of  the  receipt  of  money  by 
the  person  signing  it. 


INITIAL   STATEMENTS.  165 

The  foregoing  statement  immediately  follows  the  note  of 
entry,  and  to  preserve  chronological  sequence,  precedes  the 
patent  when  that  instrument  is  shown.  In  receipts  and  patents, 
no  special  designation  of  the  property  with  reference  to  po- 
litical divisions  is  made,  hut  same  is  described  as  of  a  certain 
land  district.  This  has  been  held  to  be  a  sufficient  designation, 
the  name  of  the  county  not  being  essential,  and  the  land  dis- 
trict sufficiently  indicating  the  State.25 

§  135.  State  Lands.  Lands  granted  to  the  States  for 
school  and  university  purposes,  as  well  as  grants  for  internal  im- 
provements, are  disposed  of  in  much  the  same  manner  as  the 
public  lands  of  the  general  government.  The  special  method  of 
their  disposal  is  regulated  by  express  statute  in  each  State,  and 
while  the  system  in  all  the  States  is  based  upon,  and  closely 
follows  that  pursued  by  the  general  government,  minor  differ- 
ences of  detail  preclude  more  than  a  general  notice.  In  some 
States  the  disposal  of  the  land  is  placed  in  the  hands  of  the 
Governor  and  Secretary  of  State,  who  issue  and  sign  all  pat- 
ents emanating  from  the  State ;  in  others  it  has  been  placed 
in  the  hands  of  a  special  commission,  to  whom  is  given  the 
power  of  disposal  and  control  of  the  investment  of  the  funds 
arising  therefrom. 

A  certificate  of  sale  of  State  lands  is  not  sufficient  to  carry 
the  fee,  which,  by  analogy  to  the  doctrine  of  sales  of  Federal 
lands,  remains  in  the  State  until  patent  has  issued.  It  entitles 
the  purchaser,  however,  to  the  beneficial  interest  in  the  prem- 
ises, and  is  sufficient  evidence  of  title  to  vest  in  him  the  same 
rights  of  possession,  enjoyment,  descent,  transmission  and 
alienation  of  the  lands  therein  described,  and  the  same  reme- 
dies for  the  protection  of  said  rights,  as  against  all  persons 
except  the  State,  that  he  would  possess  if  he  were  the  owner 
thereof  in  fee.26 

The  methods  of  sale  are  too  widely  divergent  to  inquire  into. 

2D  Mapea  v.  Scott,  94  111.  379.  his  own  State,  both  as  to  the  legal 

-;;  This    matter    is    purely    statu-  effect    of    certificates    of    purchase, 

lory.     The   reader,    for   greater   cer-  and  the  method  of  conducting  sales. 

taint  y,  will  consult  the  statutes  of 


166  ABSTRACTS    OF    TITLE. 

Thus,  in  Wisconsin,  sales  of  school  lands  are  made  by  the  com- 
missioners of  school  and  university  lands;27  in  Illinois  by  the 
county  superintendents.28  Each  State  provides  a  method  of 
its  own  with  special  officers  to  execute  the  power. 

A  certificate  of  sale  of  State  lands,  like  the  duplicate  receipt 
of  the  receiver,  is  informal  in  substance,  the  main  point  being 
the  execution  by  the  proper  statutory  officer.  Its  provisions  are 
usually  prescribed  by  statute,  and  should  consist  of  a  descrip- 
tion of  the  land  sold,  the  sum  paid,  and  where  only  a  portion 
of  the  purchase  money  is  paid  the  amount  remaining  due  there- 
on, the  time,  place  and  terms  of  payment,  and  that  if  it  shall  be 
duly  discharged,  the  purchaser  or  his  assigns  will  be  entitled 
to  a  patent  for  such  land.  As  this  matter,  when  followed  by 
patent,  is  only  introductory,  the  certificate  may  be  shown 
briefly  as  follows : 


State  of  }Yisc.onsin 

to 

Abraham  Smith 

Document,  No.  300. 


Commissioner  s  certificate,  No.   lOJf. 
Dated  21  ay  %k>  IS 50. 
Recorded  June  1,  1850. 
Booh,  "  A,"  page  J^5. 


Acknowledges  receipt  of  $26.50  in  (part)  payment  for  Lot 
six,  in  Town  one  north,  Range  nineteen  east  of  the  Fourth 
Principal  Meridian,  in  the  northwest  quarter  of  Section  six- 
teen (and  that  said  Abraham  Smith  will  be  entitled  to  a  pat- 
ent therefor  on  payment  of  $236.00). 

§  136.  The  Boot  of  Title.  The  foregoing  paragraphs 
have  reference  only  to  well  ascertained  beginnings  of  title, 
which  may  be  traced  with  little  difficulty  from  its  source  or 
fountain  head.  In  all  States  west  of  the  Alleghanies,  with 
possibly  the  exception  of  Kentucky  and  Tennessee,  this  may 
be  easily  accomplished,  and  a  purchaser  may  reasonably  insist 
on  the  production  of  a  chain  of  title  from  the  government. 
Such,   however,   is  not  always   done,   and   the   examiner,   from 

27  R.  S.  Wis..  1878,  106,  chap.  15.    28  R.  S.  111.,  1874,  chap.  122. 


INITIAL    STATEMENTS.  167 

information  furnished  by  the  vendor,  prepares  a  preliminary 
statement,  resting  mainly  on  tradition,  in  which  is  recited  the 
condition  and  course  of  the  title  at  some  remote  period,  which 
is  followed  by  a  regular  examination  from  that  time,  usually 
twenty  years  or  more  prior  to  the  date  of  the  abstract.  This 
is  following  the  English  precedents,  and  is  not  without  au- 
thoritative usage  in  the  United  States.  Where  information 
is  difficult  of  access,  or  impossible  of  procurement  from  offi- 
cial or  authentic  sources,  as  is  often  the  case  in  the  original 
States,  such  a  practice  might  be  followed  as  the  only  avail- 
able method,  leaving  the  keenness  of  counsel  to  detect  flaws, 
and  call  for  further  evidence  on  desired  points ;  but  in  the 
States  formed  from  the  territories  where  the  rectangular  sys- 
tem of  surveying  and  registration  of  conveyances  prevails,  no 
good  reason  exists  why  a  complete  abstract  showing  the  in- 
ception of  title  should  not  be  produced.  Where  a  preliminary 
sketch  is  given  as  forming  the  root  of  title,  the  examiner 
should  carefully  specify  all  his  sources  of  information,  and, 
if  consisting  of  hearsay  or  tradition  only,  expressly  disavow 
all  responsibility  for  the  truth  of  the  matters  therein  recited. 
No  other  safe  course  is  open,  and  the  reader  is  apprised  at  the 
outset  of  the  value  to  be  placed  upon  the  statement. 


CHAPTER  X. 

CONGKESSIONAL    AND    LEGISLATIVE    GRANTS. 

§  137.     Legislative  grants  generally       §  139.     Construction    of    legislative 
considered.  grants. 

138.     Nature  and  effect.  140.     Formal  requisites. 

§  137.     Legislative  Grants  Generally  Considered.    Not 

a  few  titles  have  their  foundation  in  Congressional  or  legis- 
lative grants,  or  are  grounded  upon  legislative  confirmations 
of  previously  existing  inchoate  or  equitable  rights.  A  recur- 
rence to  these  is  necessary,  even  though  a  patent  may  appear, 
as  in  many  cases  the  patent  is  only  confirmatory  evidence  of 
prior  claims  and  is  conclusive  only  between  the  sovereign  and 
the  patentee  or  these  in  privity  with  him. 

A  grant  of  land  by  statute  is  the  highest  and  strongest  form 
of  title  known  to  our  law,1  and  does  of  itself,  proprio  vigore, 
pass  to  the  grantee  all  the  estate  of  the  government  except  what 
is  expressly  excepted.2  As  a  primary  conveyance,  however, 
it  is  not  in  general  use,  for,  as  a  rule,  the  government  parts 
with  its  title  only  by  patent,  but  when  an  act  of  Congress  pur- 
ports to  convey  land  in  v/ords  of  present  grant  it  is  equally  as 
effective  as  a  patent  and  vests  a  perfect  and  irrevocable  title.3 

§  138.  Nature  and  Effect.  The  United  States  or  a  State 
may  make  a  grant  of  land  by  a  law  as  effectually  as  by  a  pat- 
ent issued  in  pursuance  of  a  law.  In  the  former  case  it  is  the 
direct  act  of  the  government  through  the  Legislature;  in  the 
latter  it  is  a  ministerial  act  under  the  direction  of  the  Legisla- 
ture.    A  confirmation  by  law  of  a  claim  of  title  in  public  lands 

ill   Opinions  Att'y  Gen.  47.  Cranch    (U.    S.),    50;    Chouteau   V. 

2  9  Opinions  Att'y  Gen.  253.  Eckhart,     2     How.      (U.     S.)      372; 

3  Strother  v.  Lucas,  12  Pet.  (U.  Swann  v.  Lindsey,  70  Ala.  507; 
S.)      454;      Terrett     v.     Taylor,     9  Dean  v.   Bittner,   77   Mo.    101. 

168 


CONGRESSIONAL    AND    LEGISLATIVE    GRANTS.  169 

is  to  all  intents  and  purposes  a  grant  of  such  lands,4  and  where 
one  is  in  possession  of  land,  a  resolve  of  the  Legislature,  re- 
leasing them  to  him,  passes  a  title  without  any  further  act,  ex- 
cept performance  of  the  conditions,  if  any.5 

An  act  of  Congress,  containing  provisions  clearly  indicat- 
ing an  intention  to  pass  the  fee  unconditionally  and  absolutely, 
operates  ipso  facto,  to  vest  the  title  in  the  grantee,6  but  if  the 
grant  be  coupled  with  a  condition  it  will  not  operate  to  vest 
the  title  until  such  condition  has  been  complied  with.7 

So,  too,  an  act  of  Congress  granting  land  to  one  person,  is 
higher  evidence  of  title  than  a  patent  of  the  same  land  subse- 
quently issued  by  the  officers  of  government  to  another  per- 
son, and  can  not  be  defeated  by  such  subsequent  patent ;  8  thus, 
titles   derived   from   the    State,    of   lands    selected   under   the 

swamp  grant,"  will  take  precedence  over  patents  from  the 
United  States  issued  subsequent  to  the  date  of  the  granting 
act.9 

Legislative  grants  and  confirmations  are  usually  followed 
by  patent,  the  issuance  of  which  is  specially  provided  for  in 
the  granting  act,  yet  the  patent  in  most  cases  adds  nothing  to 
the  force  of  the  grant,  but  is  merely  confirmatory  of  what  has 
preceded.  If  a  claim  be  made  to  land  with  defined  bound- 
aries the  legislative  confirmation  perfects  the  title  to  the  par- 
ticular tract,  and  a  subsequent  patent  is  only  documentary 
evidence  of  that  title.  If  the  claim  be  to  quantity,  and  not  to 
a  specific  tract  capable  of  identification,  a  segregation  by  sur- 
vey will  be  required  and  the  confirmation  will  then  immediately 
attach  the  title  to  the  land  segregated.10 

4  Challefoux  v.  Ducharme,  4  Wis.  1  Thompson  V.  Prince,  67  111.  281. 

554;   Dean  v.  Bittner,  77  Mo.   101;  8  Dousman  v.   Hooe,   3   Wis.   466; 

Hall   v.  Jarvis,   65   111.    302;    Lang-  Megerle  V.  Ashe,  27  Cal.  322. 

deau     v.     Hanes,     21     Wall.     521;  9  Ruigo    v.    Rotau,    29    Ark.    56; 

Strother    v.    Lucas,     12    Pet.    411;  Keller   v.    Brickey,   78    111.    133;    R. 

Field  v.  Seabury,  19  How.  323.  R.    Co.    v.    Brown,    40    Iowa,    333; 

6  Mayo   v.   Libby,    12   Mass.    339;  Daniel  v.  Purvis,  50  Miss.  201. 

Ryan  v.  Carter,  93  U.  S.  78.  10  Langdeau    v.    Hanes,    21    Wall. 

SBallance  v.  Tesson,  12  111.  327;  (U.  S.)   521;  Swann  v.  Lindsey,  70 

Grignons,  Lessee,  v.  Astor,  2  How.  Ala.   507;   Dean  v.  Bittner,  77  Mo. 

319.  101. 


170  ABSTRACTS    OF    TITLE. 

Analogous  to  the  rule  -which  obtains  in  case  of  patents,  where 
there  are  two  confirmations  or  grants  of  the  same  land,  the 
elder  must  prevail,  and  will  give  the  better  title.11  The  gov- 
ernment, like  an  individual,  has  no  power  to  withdraw  or  annul 
its  grant;  the  first,  if  lawful,  must  stand,  and  the  second  can 
not  operate  as  a  consequence,  for  the  reason  that  the  grantor, 
when  it  was  made,  had  no  estate  to  convey.12 

§  139.  Construction  of  Legislative  Grants.  A  Legis- 
lative grant  by  the  State  is  an  executed  contract,13  and  as  such 
is  within  the  clause  of  the  Constitution  of  the  United  States 
which  prohibits  the  States  from  passing  any  law  impairing 
the  obligation  of  contracts.  It  can  not,  therefore,  be  destroyed, 
and  the  estate  divested  by  any  subsequent  legislative  enact- 
ment. The  rule  applies  with  equal  force  to  corporations  as 
to  individuals,  and  when  the  State  enters  into  a  contract  with 
a  municipal  corporation,  the  subordinate  relation  of  the  cor- 
poration ceases,  and  that  equity  arises  which  exists  between 
all  contracting  parties.  The  control  of  the  Legislature  over 
the  corporation  can  be  exercised  only  in  subordination  to  the 
principle  which  secures  the  inviolability  of  contracts.14 

Congressional  grants  are  governed  by  the  same  rules,  and 
a  grant  by  Congress  to  a  State  can  not  be  recalled  at  the  will 
of  Congress  any  more  than  a  grant  to  an  individual.15  Gen- 
erally, in  a  conveyance  by  the  sovereign,  of  property  which  is 
usually  the  subject  of  private  ownership,  the  extent  of  the 
thing  granted  is  to  be  ascertained  by  the  rules  of  construction 
applicable  to  private  conveyances;  yet  in  construing  a  Con- 
gressional grant,  it  must  be  remembered  that  the  act  by  which 
the  grant  is  made  is  a  law  as  well  as  a  conveyance,  and  that 
such  effect  must  be  given  to  it  as  will  carry  out  the  intent  of 
Congress;  and  that  the  rules  of  the  common  law  must  yield 

11  Willot  v.  Sanford,  19  How.  79;  S.)  625;  Dingman  V.  People,  51  111. 
9  Opinions  Att'y  Gen.  253.  267. 

12  11  Opinions  Att'y  Gen.  47.  n  Grogan    V.    San    Francisco,    18 

13  The     Binghamton      Bridge,      3  Cal.  590. 

Wall.    (U.   S.)    51;   Dartmouth  Col-  isBusch    v.    Donohue,    31    Mich, 

lege    v.    Woodward,    4    Wheat,     (U.      480;  Rice  v.  R.  R.  Co.  1  Bl.  3£s. 


CONGRESSIONAL    AND    LEGISLATIVE    GRANTS.  171 

in  this,  as  in  all  other  cases,  to  the  legislative  will.16  Another 
exception  will  be  observed  in  that  the  ordinary  rule  construing 
the  grant  most  strongly  against  the  grantor  is  here  reversed, 
and  whatever  is  not  given  expressly,  or  very  clearly  implied 
from  the  words  of  the  grant,  is  withheld.17 

§  140.  Formal  Requisites.  Xo  particular  terms  are 
necessary  in  a  grant  by  Congress  or  the  Legislature,18  which 
will  vary  with  the  exigencies  of  each  particular  case.  In  pre- 
paring a  synopsis  of  such  grants  the  essenial  features  to  be 
observed  are :  the  title  of  the  act ;  the  date  of  passage  or  ap- 
proval; the  subject  matter,  including  the  granting  words,  in 
the  language  of  the  act ;  and  the  conditions  or  restrictions,  if 
any,  annexed  to  the  grant.  A  practical  example,  taken  from 
the  files  will  better  serve  to  illustrate  the  matter.  Peter  Pon- 
cin  entered  in  due  form  a  certain  tract  of  land,  which  entry 
was  afterward  canceled  by  the  commissioner  of  the  General 
Land  Office,  but  not  until  Poncin  had  made  conveyances  on 
the  credit  afforded  by  the  entry.  This  cancellation  was  after- 
ward set  aside  by  special  act  of  Congress  and  the  claim  of 
Poncin  confirmed,  with  a  further  direction  for  a  patent,  which 
was  subsequently  issued.  The  land  is  now  a  portion  of  the 
city  of  St.  Paul,  Minn.,  and  has  become  very  valuable.  As 
the  inception  of  this  title  is  somewhat  complicated,  a  full  de- 
tail of  all  the  preliminary  steps  is  important,  and  the  abstract 
in  this  case  should  show :  the  original  entry  by  Poncin ;  the 
subsequent  cancellation ;  the  confirmatory  act  of  Congress ;  and 
finally  the  patent ;  the  mesne  conveyances  by  Poncin  taking 
effect  by  relation.  Examples  of  the  entry  have  been  given  ; 
the  confirmatory  act  would  appear  much  as  follows : 

16  R.  R.  Co.  v.  R.  R.  Co..  97  U.  S.       355;    R.    R.   V.    Litchfield,   23   How. 
401.  (U.  S.)    88. 

17  Mayor,  etc.,  R.  R.,  26  Pa.  St.  18  Coburn  v.   Ellenwood,  4  N.  H. 

•    99. 


172 


ABSTRACTS    OF    TITLE. 


United  States1*  1 


to 


Peter  Poncin. 


Act  of  Congress,  entitled  "  An  act 
authorizing  a  patent  to  be  issued  to 
Peter  Poncin  for  certain  lands  therein 
^described/' 

Approved  July  27,  185J/.. 

Recorded  August  1,  185If.20 

Book  "  C,"  page  560. 


Enacts,  That  the  entry  of  Peter  Poncin  of  the  north  half 
of  the  southeast  quarter,  and  the  south  half  of  the  northeast 
quarter  of  Section  36,  in  the  Stillwater  land  district,  Minne- 
sota, canceled  by  the  Commissioners  of  the  General  Land  Of- 
fice, be  and  same  is  hereby  allowed  and  reinstated  as  of  the  date 
of  said  entry,  so  that  the  title  to  said  lands  may  inure  to  the 
benefit  of  his  grantees  as  far  as  he  may  have  conveyed  same; 
Provided,  that  the  purchase  money  shall  be  again  paid  at  said 
land  office,  and  that  thereupon  a  patent  shall  issue  in  the  name 
of  said  Peter  Poncin  for  said  lands. 

Further  enacts,  That  the  Superintendent  of  Public  Schools 
of  Minnesota  be  and  he  is  authorized  to  select  other  land  in 
lieu  thereof. 

This  is  one  of  the  few  species  of  conveyance  that  the  exam- 
iner is  justified  in  placing  on  the  abstract  when  same  does  not 
appear  of  record  in  the  county  in  which  the  land  is  situated; 
and  where  the  records  are  silent,  reference  to  other  authentic 
sources  of  information  must  be  inserted  and  attention  drawn 
to  the  fact  of  non-registry.  This  is  accomplished  in  the  first 
instance  by  referring  to  the  volume  and  page  of  the  United 
States  statutes,  and  in  the  latter  by  a  foot-note,  as  follows: 

Note. —  At  the  date  of  this  examination  the  foregoing  instru- 
ment is  not  of  record  in  Ramsey  county,  Minnesota. 


19  If  desired,  this  may  read 
"  Confirmation  by  the  United 
States,"  as  this  example  is,  strictly 
speaking,  a  confirmation  rather 
than  a  grant. 


20  These  acts  rarely  appear  of 
record  in  the  county,  in  which  event 
refer  to  the  book  and  page  of  the 
U.  S.  Statutes. 


CONGRESSIONAL   AND   LEGISLATIVE    GRANTS. 


173 


The  foregoing  example  belongs  to  a  class  of  private  and 
local  laws  technically  known  as  "  relief "  acts,  of  which  vast 
numbers  have  been  passed  at  different  times  since  the  public 
domain  has  been  open  for  sale  and  settlement.  As  a  patent 
usually  follows  all  acts  of  this  character  the  necessity  of  ex- 
hibiting them  is  not  so  great  as  in  case  of  confirmations,  for 
the  latter  not  only  serve  as  "  acts  of  relief,"  but  also  operate 
as  grants  in  favor  of  the  confirmees.  An  abstract  of  a  con- 
firmation need  not  differ  materially  from  the  example  last 
shown,  the  main  object  being  to  present  all  the  operative  parts 
of  the  law,  but  should  the  examiner  desire  a  choice  of  phraseol- 
ogy in  the  arrangement  of  the  formal  parts  a  further  illustra- 
tion is  herewith  given. 


"An  Act 
to 
"  confirm  the  title  of 
"  the  heirs  of  James 
"  Sympson,  deceased, 
"  to  a  certain  tract  of 
"  land  in  the  State  of 
"  Louisiana." 


Act  of  Congress,  entitled  as  in  the 
margin. 

Approved,   Aug.   29,   18^2,    Vol.    6, 
page  869,  U.  S.  Statutes  at  Large. 

Enacts,  that  the  heirs  at  law  of  James 
Sympson,  deceased,  late  of  Clarke 
County,  Kentucky,  he  and  they  arc 
hereby  confirmed  in  their  title  to  a  cer- 
tain tract  of  land  situated  at  the 
mouth  of  the  Atchafalaya,  at  its  junction  with  the  Mississippi 
River,  containing  61^0  acres;  and  as  surveyed  and  platted  in 
the  surveyor  general's  office  at  Donaldsonville,  in  the  State  of 
Louisiana,  upon  the  survey  made  and  returned  by  Charles 
Morgan,  dated  February  11,  1806,  and  executed  for  Andy  Rob- 
inson. 

Provided  (it  is  stated)  this  confirmation  shall  only  be  con- 
strued as  a  relinquishment  of  the  title  of  the  United  States  to 
said  land,  and  not  to  prejudice  any  superior  or  better  title. 


CHAPTEK  XL 


PATENTS. 

141. 

Definition.  . 

§ 

154. 

Continued. 

149. 

Patents     from    the     United 

155. 

Construction. 

States. 

156. 

Formal  requisites. 

150. 

Validity. 

157. 

Patents  from  the  State. 

151. 

Delivery. 

158. 

Continued. 

152. 

General  Land  Office  record. 

159. 

Formal   requisites   of   State 

153. 

Operation  and  effect. 

patents. 

§  141.  Definition.  A  patent  has  been  defined  as  a  grant 
of  some  privilege,  property,  or  authority,  made  by  the  gov- 
ernment or  sovereign  of  a  country  to  one  or  more  individuals, 
and  the  term,  as  originally  used  in  England,  is  said  to  have 
signified  certain  written  instruments  emanating  from  the  king, 
and  sealed  with  the  great  seal.  These  instruments  conferred 
grants  of  lands,  honors,  or  franchises,  and  were  called  letters 
patent  from  being  delivered  open,  and,  by  way  of  contradis- 
tinction from  instruments  like  the  Trench  Lettres  de  cachet, 
which  went  out  sealed.1  In  the  United  States,  the  word  is 
used  to  denote  those  instruments  which  secure  to  inventors,  for 
a  limited  time,  the  exclusive  use  of  their  inventions,  but  when 
used  in  connection  with  real  property,  it  means  the  title  deed 
by  which  a  government,  either  State  or  Federal,  conveys  its 
lands. 

§  149.  Patents  from  the  United  States.  A  patent  of 
the  United  States  is  the  conveyance  by  which  the  Nation  passes 
its  title  to  the  public  domain  and  is  the  highest  evidence  of 
derivative  title  known  to  the  law;  it  is  conclusive  as  against 
the  government,  and  all  persons  claiming  under  junior  patents 
or  titles,2  until  set  aside  or  annulled  by  some  competent  tribu- 

2  Hooper  v.  Young,  140  Cal.  274. 
174 


l  2  Bou.  Law  Diet.  298. 


PATENTS.  175 

nal.3  When  delivered  to  and  accepted  by  the  grantee,  it  passes 
the  full  legal  title  to  the  land,4  and  carries  with  it  the  presump- 
tion that  all  the  prerequisites  of  law  have  been  complied  with.5 
But  the  patent  must  show  upon  its  face  a  regular  issue,  and 
a  full  compliance  with  the  formalities  of  law,  for  a  patent 
forms  no  exception  to  the  rule,  that  the  legal  title  to  lands  can 
not  be  conveyed  except  in  the  form  provided  by  law.6  The 
principal  requisites  in  this  respect  have  reference  mainly  to 
execution  and  authentication.  To  conform  strictly  to  the  let- 
ter of  the  law,  the  patent  must  be  signed  in  the  name  of  the 
President,  either  by  himself  or  his  duly  appointed  secretary, 
sealed  with  the  seal  of  the  General  Land  Office,  and  counter- 
signed by  the  Recorder.  Until  all  of  these  have  been  done, 
the  United  States  has  not  executed  a  patent  for  a  grant  of 
lands.  Each  and  every  one  of  the  integral  parts  of  the  execu- 
tion is  essential  to  the  perfection  of  the  patent.  They  are  of 
equal  importance  under  the  law,  and  one  can  not  be  dispensed 
with  more  than  another.  Neither  is  directory,  but  all  are 
mandatory,  and  neither  the  signing  nor  the  sealing,  nor  the 
countersigning,  can  be  omitted  any  more  than  the  signing  or 
the  sealing,  or  the  acknowledgment  by  a  grantor,  or  the  attes- 
tation by  witnesses,  when  by  statute  such  forms  are  prescribed 
fur  the  due  execution  of  deeds  by  private  parties  for  the  con- 
veyance of  lands.7  Where,  however,  the  patent  is  regular  upon 
its  face,  then  a  presumption  arises  that  it  is  valid  and  that  it 
passes  title,  and  it  is,  of  itself,  prima  facie  evidence  that  all 
the  steps  prescribed  by  law  for  its  proper  issuance  have  been 
taken  before  it  was  executed.8 

§   150.     Talidity.     The   primary   rules   which   control   the 

3  United  States  v.  Stone,  2  Wall.  Winter  v.  Crommelin,   18  How.  87; 

525;  Strong  17.  Lehmer,  10  Ohio  St.  Stringer  v.   Young,  3  Pet.   320. 

93 ;   Stoddard  v.  Chambers,  2  How.  6  McGarrahan  v.  New  Idria  Min- 

284.  ing  Co.,  96  U.  S.    (6  Otto)   316. 

I  Moore  v.   Robhins,  6  Otto,   530;  7  McGarrahan   V.   Mining  Co.,    96 

Leroy  v.  Jamison.  3  Sawyer,  369.  U.   S.   316. 

5  Sweat     v.     Corcoran,     37     Miss.  8  Heinlen    v.    Heilbron,    97    Cal. 

513;    Bill    v.    Miller,    36   Mo.    182;  105. 
Collins    v.    Bartlett,    44    Cal.    371; 


176  ABSTRACTS    OF    TITLE. 

validity  of  patents  are  not  unlike  those  which  obtain  in  convey- 
ances between  individuals.  The  government  must  possess  title 
to  that  which  it  assumes  to  convey;  the  instrument  of  convey- 
ance must  be  in  legal  form,  and  it  must  have  been  issued  by 
competent  authority.  Notwithstanding  a  patent  may  be  exe- 
cuted in  due  form  its  validity  may  yet  be  impeached,  and  at 
all  times  it  is  subject  to  inquiry  as  to  whether  the  officers  who 
issued  it  had  authority  to  make  a  conveyance,  or  whether  the 
land  which  they  purported  to  convey  was  within  their  control. 
If  not,  then  the  patent  is  absolutely  void  and  may  be  attacked 
in  any  collateral  proceeding.9 

This  follows  from  the  fact  that  the  true  office  of  a  patent, 
whether  of  a  State  or  the  United  States,  is  to  pass  title  to  lands 
in  practically  the  same  manner  as  the  deed  of  an  individual. 
It  conveys  to  the  patentee  all  the  interest  of  the  government, 
whatever  it  may  be,  and,  as  a  rule,  is  conclusive  between 
them.  But  it  does  not  establish  the  fact  that  the  government 
possessed  title,10  and  hence  is  open  to  attack  collaterally,  the 
same  as  any  other  muniment  which  purports  to  convey  pos- 
sessory rights.11  Thus,  it  may  be  impeached,  and  its  opera- 
tion as  a  conveyance  defeated,  by  showing  that  the  department 
had  no  jurisdiction  to  dispose  of  the  land ;  that  is,  that  the 
law  did  not  provide  for  its  sale;  or  that  it  had  been  reserved 
from  sale  or  dedicated  to  special  purposes;  or  had  been  previ- 
ously transferred  to  others.  In  such  event  the  patent  would  be 
inoperative  to  pass  title,  and  objection  to  it  could  be  taken  on 
these  grounds  at  any  time  and  in  any  form  of  action.12 

§  151.  Delivery.  Unlike  conveyances  between  individ- 
iials,  a  formal  delivery  of  a  patent  is  not  essential  to  its  valid- 
ity,  nor   will   non-delivery    thereof   defeat    the   grant.13     The 

9  Cummings    v.    Powell,    116    Mo.  13  It  is  the  practice   of  the  Gen- 

473 ;    Edwards    v.    Ealley,    96    Cal.  eral  Land  Office  to  transmit  patents, 

408;  Doolan  v.  Carr,  125  U.  S.  625.  as  rapidly  as  completed,  to  the  va- 

io  Musser    v.    McRea,    38    Minn.  rious    local    offices    for    delivery   on 

409.  surrender    of   the   duplicate    receipt 

11  Winter  v.  Jones,  10  Ga,  100.  or     certificates.     Frequently,     how- 

1 2  Steel  v.  St.  Louis  Smelting  Co.,  ever,  they  remain  uncalled  for, 
106   U.   S.   447.  and    on    the    discontinuance    of    a 


PATENTS.  177 

importance  attached  to  the  delivery  of  deeds  in  modern  convey- 
ancing arises  largely  from  the  fact  that  a  deed  has  taken  the 
place  of  the  ancient  livery  of  seizin,  when,  in  order  to  give 
effect  to  the  enfeoffment  of  the  new  tenant,  the  act  of  deliver- 
ing possession  in  a  public  and  notorious  manner  was  the  essen- 
tial evidence  of  the  investure  of  the  title  to  the  land.  This 
became  gradually  diminished  in  importance  until  the  manual 
delivery  of  a  piece  of  the  turf,  and  many  other  symbolical  acts, 
became  sufficient.  When  all  this  passed  away  and  the  creation 
and  transfer  of  estates  in  land  by  a  written  instrument,  called 
the  act  or  deed  of  the  party,  became  the  usual  mode,  the  instru- 
ment was  at  first  delivered  on  the  land  in  lieu  of  livery  of 
seizin,14  until  finally  any  delivery  of  the  deed,  or  any  act  which 
the  party  intended  to  stand  for  such  delivery,  became  effectual 
to  pass  the  title.15 

No  livery  of  seizin,  however,  was  necessary  of  the  king's 
grants,  which  were  made  matters  of  record,  for  when  the  seal 
was  affixed  to  the  instrument  and  enrollment  of  it  was  made, 
no  higher  evidence  could  be  had,  nor  was  any  other  evidence 
necessary  of  this  act  or  deed  of  the  king.  Hence,  Mr.  Cruise 
in  his  digest  says :  "  The  king's  letters  patent  need  no  deliv- 
ery; nor  his  patents  under  the  great  seal  of  the  Duchy  of 
Lancaster;  for  they  are  sufficiently  authenticated  and  com- 
pleted by  the  annexing  of  the  respective  seals  to  them."  In 
like  manner  when  a  patent  for  public  lands  has  been  made  out 
and  signed  by  the  President,  the  seal  of  the  United  States  af- 
fixed, and  the  instrument  countersigned  by  the  Recorder  of  the 
Land  Office  and  duly  recorded  in  the  record  book  kept  for  that 
purpose,  it  becomes  a  solemn  public  act  of  the  government  of 
the  United  States  and  needs  no  further  delivery  or  other  au- 
thentication to  make  it  perfect  and  valid.16     When  this  has 

local   office   all   undelivered   patents  14  Shep.  Touch.  64;  Coke  on  Litt. 

remaining  in  its  files  are  returned  266  b. 

to   the   General    Land    Office   where  15  Church    V.    Gilman,    15    Wend. 

they    are    assorted,    filed    and    pre-  656;    Warren    V.    Levitt,    11    Foster 

served.     See     Rep.     General     Land  (N.    IL),    340;    Hatch   V.   Hatch,    9 

Office,  1875.  Mass.  306. 

lSGilmore  v.   Sapp,   100  111.  297. 
12 


178  ABSTRACTS    OF    TITLE. 

been  done  the  title  to  the  land  conveyed  passes  by  matter  of  rec- 
ord to  the  grantee,  and  delivery,  as  in  case  of  the  deeds  of  pri- 
vate individuals,  is  not  necessary  to  give  effect  to  the  granting 
clause  of  the  instrument.1 7 

Theoretically,  in  order  that  the  patent  may  take  effect  as  a 
conveyance,  it  is  essential  that  there  be  an  acceptance  on  the 
part  of  the  grantee,  but  the  acts  required  to  be  done  by  him 
in  the  preparation  of  his  claim  are  equivalent  to  a  positive  de- 
mand for  the  patent,  and  where  the  patentee  does  not  expressly 
dissent,  his  assent  and  acceptance  are  always  presumed  from 
the  beneficial  nature  of  the  grant.18  Some  confusion  has  arisen 
as  to  the  time  when  a  patent  takes  effect,  that  is,  when  it  be- 
comes operative  as  a  conveyance  and  binding  upon  both  par- 
ties, from  not  distinguishing  between  acts  which  bind  the  gov- 
ernment and  acts  which  bind  the  patentee.  ISTo  one  can  be 
compelled  by  the  government,  any  more  than  by  an  individual, 
to  become  a  purchaser,  or  event  to  take  a  gift.  Nor  can  the 
burdens  or  advantages  of  property  be  thrust  upon  him  with- 
out his  assent,  and  the  patent  of  government,  like  the  deed  of 
a  private  person,  must,  in  order  to  take  effect  as  a  conveyance 
and  transfer  title,  be  accepted  by  the  grantee;  yet,  as  we  have 
seen,  the  possession  of  property  is  so  universally  considered  a 
benefit,  that,  in  the  absence  of  express  dissent,  an  acceptance 
is  presumed  whenever  the  conveyance  is  placed  in  condition 
for  acceptance,  and  this  occurs  when  the  last  formalities  re- 
quired by  law  of  the  officers  of  the  government  are  complied 
with.  By  the  execution,  sealing  and  recording,  open  and  pub- 
lic declaration  is  made  that,  so  far  as  the  government  is  con- 
cerned, the  title  to  the  premises  has  been  transferred  to  the 
grantee.  The  record  stands  in  place  of  the  offer  for  delivery 
in  the  case  of  a  private  deed;  and  the  instrument  is  thence- 
forth held  for  the  grantee,  who  takes  by  matter  of  record.19 
§  152.     General   Land   Office   Record.     Patents   do   not 

17  United    States    v.    Schurz,    102  18  Pierre     Mutelle     case,     3     Op. 

U.    S.    378;    LeRoy    V.    Jamison,    3  Att'y  Gen.  654;   LeRoy  v.  Jamison, 

Saw.  369;  Houghton  V.  Hardenberg,  3  Saw.    (C.  Ct.)    369. 

53  Cal.   181.  19  LeRoy  v.  Jamison,  3  Saw.    (C. 


PATENTS.  179 

come  within  the  provisions  of  the  recording  laws  of  the  State, 
where  the  terms  of  the  statute  do  not  specifically  include  them,20 
though  it  is  usual  to  record  them  in  the  county  where  the  land 
is  situate,  and  such  registration,  as  a  rule,  is  expressly  permitted 
by  statute.  The  act  for  the  establishment  of  a  General  Land 
Office  provides  that  all  patents  issuing  therefrom  "  shall  be 
recorded  in  said  office  in  books  to  be  kept  for  the  purpose,"  and 
the  indorsement  of  such  record  will  always  be  found  upon  the 
patent.  This  indorsement  should  always  be  copied  by  the  re- 
cording officer  when  presented  for  local  registration,  and  a 
minute  of  same  made  by  the  examiner  when  preparing  the  ab- 
stract. Direct  and  easy  reference  is  thus  made  to  the  highest 
source  of  information  in  case  of  the  mutilation,  loss  or  de- 
struction of  the  original,  though,  of  course,  recourse  may  be 
had  to  it  in  other  ways.  This  original  record  is  not  in  itself 
a  grant  of  title,  but  it  is  an  evidence  of  equal  dignity  with  the 
patent,  because,  like  the  patent,  it  shows  that  a  grant  has  been 
made. 

The  record  called  for  by  act  of  Congress  is  made  by  copying 
the  patent  to  be  issued  into  the  book  kept  for  that  purpose, 
and  such  record,  as  a  matter  of  evidence,  stands  in  the  same 
position  and  has  the  same  effect  as  the  instrument  of  which 
it  purports  to  be  a  copy.21  The  public  records  of  the  depart- 
ments of  the  government  are  not,  like  those  kept  pursuant  to 
ordinary  registration  laws,  intended  for  notice,  but  for  preserva- 
tion of  the  evidence  of  the  transactions  of  the  department. 
Where  the  county  records  fail  to  show  a  patent,  and  no  other 
divesture  of  governmental  title  appears,  recourse  should  be 
had  to  the  General  Land  Office,  and  the  claimant's  title  will  be 
determined,  in  the  absence  of  other  circumstances,  by  what  is 
there  shown. 

The  failure  to  record  the  patent  does  not  defeat  the  grant, 

Ct.)  3C9;  Green  V.  Liter,  8  Cranch  367;  Curtis  v.  Hunting,  6  Iowa, 
(U.  S.),  247;   Gilmore  v.  Sapp,  100       536. 

111.  297.  21  McGarrahan  V.  New  Idria  Min- 

20Moran     v.     Palmer,     13    Mich.       hag    Co.,     6    Otto,    316;     Sands    V. 

Davis,  40  Mich.  14. 


180  ABSTRACTS    OF    TITLE. 

but  merely  takes  from  the  party  one  of  the  means  of  making 
his  proof.  If  the  patent  itself  can  still  be  produced,  and  it  is 
duly  executed  with  all  the  formalities  required  by  law,  the  pat- 
entee and  his  grantees  may  still  maintain  their  rights  under 
it.  A  perfect  record  of  a  perfect  patent  proves  the  grant,  but 
a  perfect  record  of  an  imperfect  patent  or  an  imperfect  record 
of  a  perfect  patent  has  no  such  effect.  In  such  latter  case,  if 
a  perfect  patent  has  in  fact  issued,  it  must  be  proved  in  some 
other  way  than  by  the  record.  The  record  of  the  patent, 
analogous  to  the  doctrine  of  registration  under  State  laws,  is 
treated  as  presumptive  evidence  of  its  delivery  to  and  accept- 
ance by  the  grantee.22 

§  153.  Operation  and  Effect.  A  patent  is  a  complete 
appropriation  of  the  land  it  describes,23  and  passes  to  the  pat- 
entee all  the  interest  of  the  United  States,  whatever  it  may  be, 
in  everything  connected  with  the  soil,  or  forming  any  portion 
of  its  bed,  or  fixed  to  its  surface ;  in  short,  in  everything  em- 
braced within  the  term  "  land."  24  It  is  conclusive  evidence 
of  the  right  of  the  patentee  to  the  land  described  therein,  not 
only  as  between  himself  and  the  government,  but  as  between 
himself  and  a  third  person,  who  has  not  a  superior  title  from  a 
source  of  paramount  proprietorship.25 

When  issued  to  a  confirmee  of  a  foreign  grant,  a  patent 
operates  like  the  deed  of  any  other  grantor,  and  passes  only  such 

22  MeGarrahan  V.  New  Idria  Min-  pertained  to  the  king  at  common 
.'.:_>•  Co.,  6  Otto,  316;  LeRoy  v.  Jam-  law,  comprehended  not  only  those 
ioon,  3  Sawyer,  369.  rights  which  relate  to  the  political 

23  Stringer's  Lessee  V.  Young,  3  character  and  authority  of  the  sov- 
Pet.  320.  ereign,  but  also  those  which  are  in- 

24  Fremont  v.  Flower,  17  Cal.  cidental  to  his  regal  dignity,  and 
199.  According  to  the  common  law  may  be  severed  at  pleasure  from  the 
of  England,  mines  of  gold  and  silver  crown  and  vested  in  the  subject. 
were  the  exclusive  property  of  the  It  is  only  to  the  rights  of  the  first 
crown,  and  did  not  pass  in  a  grant  class  that  the  States  by  virtue  of 
of  the  king  under  a  general  desig-  their  sovereignty  are  entitled,  and 
nation  of  lands  or  mines.  It  has  mines  of  the  precious  metals  belong 
sometimes  been  asserted  that  this  to  the  second  class.  Moore  V.  Snow, 
prerogative   right  passed  to  or  was  17  Cal.   199.  ( 

inherent  in  the  States,  but  this   is  25  Waterman    v.    Smith,    13    Cal. 

an   error.     The  jura  relgalia  which      373. 


PATENTS.  181 

interest  as  the  government  possessed,  the  deed  taking  effect  by 
relation  from  the  initiation  of  the  series  of  proceedings  for  con- 
firmation and  of  which  it  forms  the  last  act.26  But  as  the 
record  of  the  government  of  the  existence  and  validity  of  the 
grant,  it  establishes  the  title  of  the  patentee  from  the  date  of 
the  grant,  such  title  depending,  up  to  the  issuance  of  the 
patent,  upon  the  character  of  the  grant  and  the  proceedings  of 
the  former  government  in  reference  to  it.27  As  such  record, 
with  respect  to  the  title  of  the  patentee  existing  at  the  date  of 
the  cession  of  the  foreign  territory,  it  is  conclusive  evidence  of 
title  in  the  patentee  at  the  time  the  jurisdiction  of  the  subject 
passed  from  the  foreign  government  to  the  United  States.28 
It  is  the  evidence  which  the  government  furnishes  the  claimant 
of  its  action  respecting  his  title.  By  it  the  sovereign  power, 
which  alone  could  determine  the  matter,  declares  that  the 
previous  grant  was  genuine ;  that  the  claim  under  it  was  valid, 
and  entitled  to  recognition  and  confirmation  by  the  law  of  na- 
tions and  the  stipulations  of  the  treaty;  and  that  the  grant 
was  located,  or  might  have  been  located,  by  the  former  govern- 
ment, and  is  correctly  located  by  the  new  government,  so  as  to 
embrace  the  premises  as  they  are  surveyed  and  described.29 
A  patent  issued  on  a  confirmed  foreign  grant,  is,  therefore,  in 
the  nature  of  a  conveyance  by  way  of  quit-claim.  It  is  conclu- 
sive only  as  between  the  parties  thereto,  and  is  evidence  that 
as  against  the  United  States,  the  validity  of  the  grant  has  been 
established.30 

§  154.  Continued.  The  Government  of  the  United  States 
has  a  perfect  title  to  the  public  land  and  an  absolute  and  un- 
qualified right  of  disposal.  Neither  State  nor  territorial  legis- 
lation can  in  any  manner  modify  or  affect  the  right  which  the 
government  has  to  a  primary  disposal ;  nor  can  such  legislation 
deprive  the  grantees  of  the  United  States  of  the  possession  and 
enjoyment  of  the  property  granted  by  reason  of  any  delay  in 

MYount  v.  Howell,  14  Cal.  465;  28  Leese  V.  Clark,  20  Cal.  387. 

Leese  V.  Clark,   18  Cal.  535.  29  Leese  v.  Clark,  20  Cal.  387. 

27  Teschemacher  v.  Thompson,  18  30  Adam  v.  Norris,  103  U.  S.  591. 
Cal.  11. 


182  ABSTRACTS    OF    TITLE. 

the  transfer  of  the  title  after  the  initiation  of  proceedings  for 
its  acquisition.31  Whether  the  title  to  a  portion  of  the  public 
lands  has  passed  from  the  United  States  depends  exclusively 
upon  the  laws  of  the  United  States;  when  it  has  passed,  it 
then  becomes  subject  to  State  laws.32  These  statements  acquire 
additional  importance  from  the  fact  that  in  a  majority  of  the 
Western  States  the  entry  has,  for  many  years,  been  recognized 
as  the  basis  of  a  legal  title,  and  in  actions  of  ejectment  has  fre- 
quently boen  received  as  such ;  but  in  the  federal  courts  the 
patent  is  held  to  be  the  foundation  of  title  at  law,  and  neither 
party  can  bring  his  entry  before  the  court.33 

A  purchaser  from  one  holding  under  a  patent  is  not  bound 
to  look  behind  the  patent  to  learn  if  it  was  properly  issued  to 
the  one  entitled  to  it,34  for  the  instrument  is  in  itself  pre- 
sumptive evidence  that  all  prior  proceedings  are  legal,35  but 
every  purchaser  is  presumed  to  have  notice  of  any  defect  of  title 
apparent  upon  its  face,36  and  is  chargeable  with  notice  of  what- 
ever the  patent  recites.37 

A  patent  issued  to  a  fictitious  person  is  a  nullity,38  as  is  also 
a  patent  issued  to  a  person  deceased,39  but  the  heirs  of  a  de- 
ceased person  will  take  a  valid  title  to  the  land  so  conveyed 
to  a  deceased  ancestor  40  under  special  acts  of  Congress.41 

§  155.  Construction.  It  is  a  rule  of  construction  gener- 
ally applicable  to  public  grants,  that  such  grants  are  to  be  con- 

31  Union  Mill,  etc.,  Co.  v.  Ferriss,  39  Gait  V.  Galloway,  4  Pet.  (U. 
2  Sawyer,  17G;  Gibson  v.  Chouteau,  S.)  345;  McDonald  v.  Smalley,  6 
13  Wall.  92.                                                   Pet.    (U.   S.)    261. 

32  Wilcox  r.  Jackson,  13  Pet.  498.  40  Galloway  v.  Finley,  12  Pet.  (U. 
33McArthur       r.       Browder,       4       S.)   264. 

Wheat.    488;    Fenn    v.    Holmes,    21  41  In  1836  Congress  passed  an  act 

How.   481.  to   give  effect  to   patents   issued   in 

34  Schnee  V.  Schnee2  23  Wis.  377.  the  name  of  deceased  persons  which 

35  Barry  V.  Gamble,  8  Mo.  88 ;  provides,  that  the  title  to  the  land 
Winter  v.  Crommelin,  18  How.  87;  designated  in  such  patents  shall  in- 
Stringer  r.  Young,  3  Pet.  320.  ure    to    and    become    vested    in    the 

so  Bell   v.  Duncan,    11    Ohio,   192.  heirs,  devisees  or  assignees  of  such 

37  United  States  v.  Land  Grant  deceased  persons  as  if  the  patent 
Co.,  21  Fed.  Rep.   19.  had  been  issued  to  the  deceased  per- 

38  Thomas   V.   Wyatt,   25  Mo.   24.  son  during  life. 


PATENTS.  183 

strued  most  favorably  to  the  public  and  most  strongly  agairisl 
the  grantee ;  that  nothing  passes  by  such  grants  except  what  is 
expressed  in  unequivocal  language,  and  that  whatever  is  not 
unequivocally  granted  is  deemed  to  be  withheld,  nothing  pass- 
ing by  implication.  In  late  cases,  however,  it  has  been  held, 
that  this  rule  does  not  apply,  at  least  to  its  full  extent,  to  grants 
made  upon  adequate  valuable  considerations,  but  refers  rather 
to  gratuitous  grants  made  by  the  sovereign  upon  the  solicitation 
of  the  grantees.42 

But  little  room  for  construction  will  ordinarily  be  found 
in  patents,  and  when  rules  of  construction  are  invoked  it  is 
usually  to  determine  matters  relating  to  description.  In  such 
cases  it  has  been  held  that  the  entire  description  of  the  lands 
given  in  the  patent  must  be  taken  together,  and  the  identity  of 
the  land  ascertained  by  a  reasonable  construction  of  the  lan- 
guage used.  If,  however,  there  be  a  repugnant  call,  which,  by 
other  calls  of  the  patent,  clearly  appears  to  have  been  made 
through  mistake,  the  patent  will  still  be  valid  and  the  am- 
biguity or  doubt  which  may  arise  may  be  explained  in  the  same 
maimer  and  under  the  same  rules  that  obtain  between  private 
grantors  and  grantees.43 

§  156.  Formal  Requisites.  As  has  been  seen,  less  for- 
mality is  required  in  grants  from  the  sovereign  than  in  deeds 
between  individuals,  the  main  essentials  having  reference  to 
the  facts  of  execution.  The  instrument  usually  consists  of  an 
acknowledgment  of  payment  for  the  land  granted,  and  a  con- 
veyance thereof  by  a  description  conforming  to  the  terms  of  the 
government  survey.  This,  with  the  execution,  is  all  that  is 
found  in  the  average  patent,  particularly  when  issued  to  a 
purchaser  in  the  regular  course  of  disposition  according  to  pre- 

42Langdon   v.   New   York,   93   N.  what  he  asks,  and  if  that  does  not 

Y.    129;    Charles    River    Bridge    V.  appear,  nothing  snail  pass  from  the 

Warren    Bridge,     7     Pick.     (Mass.)  sovereign    by    reason    of    the    uncer- 

344.     The  reason  generally  given  for  tainty. 

the  rule  is,  that  in  a  grant  proceed-  43  Boardman  'V.  Reed,  6  Pet.    (U. 

ing  from  the  application  of  the  sub-  S.)      328;     Mclver     v.     Walker,     9 

ject,    the    grantee    ought    to    know  Crunch    (U.   S.),  173. 


184  ABSTKACTS    OF    TITLE. 

scribed  legal  formulas.  The  abstract  of  such  an  instrument  is 
as  simple  as  the  original,  and  would  cover  all  the  essential  points 
if  made  as  follows : 


United  States 

to 

Francis   W.    Walker. 


Patent. 

Certificate,  No.  520. 
J.  Dated  Feb.  1,  1860. 
Recorded  Feb.  25,  1888. 
Book  15,  page  90. 


Grants,  The  Northeast  quarter  of  Section  ten,  Town  two 
North,  Bange  twenty-three,  East  of  3d  P.  M.,  Milwaukee  Land 
District. 

General  Land  Office,  record  100,520. 

Where  the  patent  is  issued  in  pursuance  of  a  confirmation 
or  act  of  Congress,  the  matter  of  inducement  will  usually  be 
found  immediately  preceding  the  granting  clause,  and  in  such 
case  a  brief  recital  should  be  made  in  the  abstract  setting  out 
the  substance  or  purport  of  the  matter  of  inducement. 

It  will  often  happen  that  a  patent  has  been  duly  issued  and 
delivered  to  the  patentee,  but  through  neglect  has  not  been 
placed  on  record  in  the  registry  of  deeds  of  the  county  where 
the  land  is  situate.  To  remedy  the  defect  of  title  thus  pro- 
duced, where  the  original  document  can  not  be  found,  it  is 
customary  to  procure  an  exemplification  of  the  General  Land 
Office  record  and  this,  when  recorded,  practically  takes  the 
place  of  the  original  patent.  In  abstracting  such  instruments 
the  commissioner's  certificate  should  always  be  shown,  and 
this  may  be  done,  substantially,  as  follows: 

Appended  is; 

A  certificate,  dated  Dec.  2,  1887,  by  J  no.  M.  Brown, 
Commissioner  of  the  General  Land  Office,  Washington,  D. 
C,  under  the  seal  of  said  office,  that  the  "  annexed  "  copy 
of  Patent  to  Francis  W.  Walker,  founded  on  Milwaukee, 
Wis.,  cash  entry  No.  520,  is  a  true  and  literal  exemplifica- 
tion from  the  records  of  "  this  office." 


PATENTS. 


181 


§  157.  Patents  from  the  State.  The  lands  belonging 
to  the  State  are  distinguishable  into  two  general  classes:  1st. 
Those  which  it  owns  by  virtue  of  grants  from  the  United 
States.  2d.  Those  which  it  owns  by  reason  of  its  sovereignty. 
The  original  thirteen  States  and  Texas  entered  the  Union  as 
landed  proprietors.  In  the  remaining  States,  with  but  a  few 
exceptions,  as  Vermont,  whose  territory  was  claimed  by  New 
York  and  ISTew  Hampshire,  etc.,44  the  original  title  to  the  soil 
was  in  the  general  government.  The  States  entering  the 
Union  as  sovereign  proprietors,  claim  original  and  ultimate 
title  in  all  their  lands,  while  the  class  of  lands,  in  States  formed 
from  the  territories,  belonging  to  the  State  by  reason  of  its 
sovereignty,  includes  only  the  shores  of  the  sea,  and  of  its 
bays  and  inlets.  Such  lands,  called  "  marsh "  or  "  tide " 
lands,  are  such  as  are  covered  and  uncovered  by  the  ebb  and 
flow  of  the  tide,  but  are  susceptible  of  reclamation  so  as  to 


44  Kentucky  was  part  of  Virginia, 
Tennessee  of  North  Carolina,  and 
Maine  was  claimed  by  Massachu- 
setts. The  territory  "  northwest  of 
the  river  Ohio "  was  originally 
claimed  by  Virginia,  and  was  con- 
veyed to  the  United  States  by  the 
deed  of  cession  of  March  1,  1784, 
as  a  common  fund  for  the  use  and 
benefit  of  all  the  States,  "  upon 
condition  that  the  territory  so 
ceded  shall  be  laid  out  and  formed 
into  States,  containing  a  suitable 
extent  of  territory,  not  less  than 
100,  nor  more  than  150  miles 
square,  or  as  near  thereto  as  cir- 
cumstances will  admit;  and  that 
the  States  so  formed  shall  be  re- 
publican States  and  admitted  mem- 
bers of  the  Federal  Union,  having 
the  same  rights  of  sovereignty, 
freedom  and  independence  as  the 
Other  States."  The  State  of  Geor- 
gia, by  deed  of  cession,  dated  April 
24,  1802,  substantially  the  same  aa 
the   Virginia   cession,   conveyed   the 


territory  forming  the  present  State 
of  Alabama.  The  remaining  terri- 
tory was  acquired  by  purchase  and 
conquest.  The  cessions  of  Georgia 
and  Virginia  were  accepted  by  the 
United  States,  and  the  municipal 
eminent  domain  held  as  a  trust  for 
the  new  States  to  be  formed  in  con- 
formity to  the  deeds  of  cession,  the 
details  to  be  regulated  by  the  act 
of  Congress  known  as  the  ordinance 
of  1787.  Upon  the  admission  of 
the  new  States  nothing  remained  to 
the  United  States,  according  to  the 
terms  of  the  agreement,  but  the 
public  lands,  and  upon  their  dis- 
posal the  power  of  the  general  gov- 
ernment over  these  lands,  as  prop- 
erty, also  ceased,  leaving  the  State 
in  undisputed  sovereignty,  includ- 
ing the  ownership  and  dominion  of 
her  navigable  waters  and  the  soil 
under  them.  See  Pollard  V.  Hagan, 
3  How.  (U.  S.)  212;  Freedman  V. 
Goodwin,  1  McAlister,  142;  Ward 
v.  Mulford,  32  Cal.  305;  Fairish  V. 


186  ABSTRACTS    OF    TITLE. 

be  made  valuable  for  agricultural  or  other  purposes.45  This 
doctrine  of  title  by  sovereignty  also  prevails  in  some  of  the 
inland  States,  and  is  applied  to  the  submerged  lands  covered 
by  navigable  lakes  and  streams  upon  the  borders  and  within 
the  boundaries  of  the  State.46 

The  State  can  make  no  disposition  of  the  lands  it  holds  by 
virtue  of  its  sovereignty  prejudicial  to  the  rights  of  the  pub- 
lic to  use  them  for  navigation  and  fishery,  but  it  may  dispose 
of  them  for  the  purpose  of  promoting  the  interests  of  naviga- 
tion, or  of  reclaiming  them  from  the  sea,  where  it  can  be  done 
without  prejudice  to  the  public  right  of  navigation.47 

The  title  to  lands  under  tide  waters  within  the  realm  of 
England  was  by  the  common  law  deemed  to  be  vested  in  the 
king  as  a  public  trust  to  subserve  and  protect  the  public  right 
to  use  them  as  common  highways  for  commerce,  trade  and  inter- 
course. The  king,  by  virtue  of  his  proprietary  interest,  could 
grant  the  soil  so  that  it  should  become  private  property,  but 
his  grant  was  subject  to  the  paramount  right  of  public  use, 
which  he  could  neither  destroy  nor  abridge.  The  laws  of 
most  nations  have  sedulously  guarded  the  public  use  of  the 
navigable  waters  within  their  limits  against  infringement,  sub- 
jecting it  only  to  such  regulation  by  the  State,  in  the  interest 
of  the  public,  as  is  deemed  consistent  with  the  preservation 
of  the  public  right.48  The  title  to  lands  under  tide  waters 
in  this  country,  which  before  the  Revolution  was  vested  in 
the  king,  became,  upon  separation  of  the  colonies,  vested  in 
the  States  within  which  the  lands  are  situated.  The  people 
of  the  State,  in  their  right  of  sovereignty,  succeeded  to  the 
royal  title,  and  through  the  Legislature  may  exercise  the  same 
powers,  which,  previously  to  the  Revolution,  could  have  been 

Coon,   40   Cal.    33;    Barney  V.  Keo-  lard  v.  Hagan,  3  How.    (U.  S.)   212. 

kuk,  94  U.  S.  336 ;   Shively  v.  Par-  40  Musser    r.    Hershey,    42    Iowa, 

ker,  9  Or.   504.  356;    Barney   v.    Keokuk,    94   U.   S. 

45  People  V.  Morrill,  26  Cal.  336;  324;     Benson    V.    Morrow,    61    Mo. 

Ward     v.    Mulford,    32     Cal.  365;  345. 

Simpson   v.    Neil,    80   Pa.    St.  183;  47  Ward  V.  Mulford,  32  Cal.  365. 

Coburn  v.  Ames,  52  Cal.  385 ;  Hin-  48  Andrews,  J.,  in  People  v.  Ferry 

man   v.  Warren,  6  Oreg.  408;  Pol-  Co.,  68  N.  Y.    71. 


PATENTS.  187 

exercised  by  the  king  alone,  or  by  him  in  conjunction  with 
parliament,  subject  only  to  those  restrictions  which  have  been 
imposed  by  the  Constitution  of  the  State  and  of  the  United 
States.49  A  modified  form  of  this  doctrine  has  been  adopted 
by  States  adjacent  to  the  great  lakes. 

§  158.  State  Patents  —  Continued.  It  will  be  seen, 
therefore,  that  in  the  Colonial  States,  as  well  as  in  the  State  of 
Texas,  the  original  and  paramount  source  of  title  is  the  State. 
In  all  the  States  formed  from  national  territory,  except  as 
the  sovereign  prerogative  above  mentioned  has  been  asserted, 
the  patent  from  the  State  is  only  a  mesne  conveyance  of  an 
older  and  pre-existent  title,  depending  for  its  validity  upon 
the  preliminary  steps  by  which  the  State  acquired  ownership 
to  the  soil.  In  tide  water  States,  notably  Alabama,  California 
and  Oregon,  where  the  doctrine  of  original  title  by  virtue  of 
sovereignty  has  been  strongly  asserted,  a  State  patent  or  grant 
may,  in  some  cases,  form  the  foundation  of  an  unassailable  title ; 
but  in  the  interior  as  well  as  in  States  bordering  on  the  great 
lakes,  where  no  perceptible  tide  is  found,  the  State  while  exer- 
cising dominion  over  its  water  ways,  has  usually  conceded  the 
ownership  i:i  the  soil  covered  thereby  to  the  adjacent  riparian 
proprietor,  who  would  hold,  whatever  might  be  the  mesne  con- 
veyances, from  the  United  States  in  virtue  of  the  original 
divesture  by  patent,  grant,  or  otherwise.  The  rule,  in  this 
respect,  is  not  uniform,  however,  and  in  some  of  the  States 
bordering  on  the  great  lakes,  as  in  Illinois,  while  title  to  the 
bed  of  streams  is  conceded  to  the  owners  of  the  banks,  the 
land  under  the  waters  of  the  lakes  is  held  by  the  State  and 
the  title  of  the  riparian  proprietor  stops  at  the  shore.50 

§  159.  Formal  Requisites  of  State  Patents.  The  for- 
malities to  be  observed  in  patents  emanating  from  the  State 
have  reference  to  the  statutory  requisites  relative  to  issuance 
and  execution,  and  while  the  instruments  closely  follow  the 
forms  adopted  by  the  national  government,  minor  differences 
of  detail  will  yet  be  found,  varying  with  the  locality.     Or- 

49  Lansing  v.  Smith,  4  Wend.  9. 

50  Sec,    People    v.    Lincoln    Park    Comr.,   162  111.   138. 


188  ABSTRACTS    OF    TITLE. 

dinavily  a  State  patent,  in  analogy  to  those  issued  by  the  gen- 
eral government,  is  under  the  hand  of  the  chief  magistrate, 
and  authenticated  by  the  great  seal.  Such  a  course  is,  how- 
ever, by  no  means  uniform,  the  statute  often  prescribing  other 
and  different  formalities.  Thus,  in  Wisconsin,  the  commis- 
sioners of  school  and  university  lands  are  alone  authorized  to 
convey  such  lands,  and  that  power  can  not  be  transferred  to 
others ;  hence  a  patent  issued  by  the  Governor  and  Secretary 
of  State,  although  in  conformity  to  the  general  statute  regu- 
lating patents,  would  be  void  and  inoperative  to  pass  the  title 
to  that  particular  class  of  lands.51  Thus  it  will  be  seen  that 
in  State,  as  in  national  patents,  the  execution,  according  to 
prescribed  regulations,  is  after  all  the  main  point  of  inspec- 
tion in  abstracting  these  documents. 

5iMcCabee  v.  Mazzuchelli,  13  Wis.  478. 


§  160. 

General  remarks. 

§  166. 

161. 

Division   of   the   public   do- 

167. 

main. 

168. 

163. 

Subdivision   of  sections. 

169. 

164. 

Rectangular    surveying. 

170. 

165. 

Meander   lines. 

171. 

CHAPTER  XII. 

SURVEYS,    PLATS    AND    SUBDIVISIONS. 

Plats   and   subdivisions. 
Formal  requisites. 
Effect    of   registration. 
Vacation    and    cancellation. 
Dedication  by  plat. 
Re-surveys. 

§  160.  General  Remarks.  A  fair  knowledge  of  the 
principles  of  surveying  is  indispensable  to  good  work  on  the 
part  of  either  examiner  or  counsel.  In  tracing  devious  paths 
and  intricate  windings  of  the  title  through  the  media  of  un- 
certain, ambiguous  or  faulty  descriptions,  as  well  as  where, 
by  minute  subdivisions,  and  irregular  shaped  parcels,  the 
proper  location  of  the  land  becomes  a  matter  of  careful  measure- 
ment or  calculation,  this  knowledge  will  be  found  of  the  ut- 
most importance.  A  knowledge  of  the  governmental  divisions 
of  the  county  is  also  necessary  to  intelligent  inquiry,  and  the 
same  is  generally  true  of  subsequent  subdivision  either  by  pub- 
lic authority,  as  case  of  town  plats,  or  subdivisions  by  indi- 
viduals. Where  the  examination  is  complicated  by  questions 
arising  from  description,  counsel  should  first  familiarize  him- 
self with  the  relative  position  of  the  land,  and,  when  the  ex- 
aminer has  furnished  no  plats,  can  greatly  facilitate  his  labors 
by  the  use  of  sketch  maps  prepared  by  himself. 

§  161.  Divisions  of  the  Public  Domain.  The  public 
lands  of  the  United  States  are  ordinarily  surveyed  into  rec- 
tangular tracts  bounded  by  lines  conforming  to  the  cardinal 
points,  according  to  the  true  meridian.1      The  largest  of  these 

1  This  system,  which  is  essentially  gress  May  7th,  1784.  Thomas  Jef- 
Amorican  in  all  its  details,  was  re-  ferson  was  the  chairman  of  this 
ported    from    a    committee    of    Con-       committee,   and    to    him    the    credit 

189 


190  ABSTRACTS    OF    TITLE. 

divisions,  called  a  township,  is  a  body  six  miles  square,  hav- 
ing reference  to  an  established  principal  base  line  on  a  true 
parallel  of  latitude,  and  to  a  longitude  styled  a  principal  me- 
ridian, and  contains,  as  near  as  may  be,  23,040  acres.  The 
townships  are  subdivided  into  thirty-six  tracts,  each  one  mile 
square,  called  sections,  and  containing,  as  near  as  may  be,  G40 
acres.  The  division  is  accomplished  by  running  through  the 
township,  each  way,  parallel  lines  at  the  end  of  every  mile. 
Any  number  or  series  of  contiguous  townships  situate  north  or 
south  of  each  other  constitute  a  range. 

As  it  is  impossible  to  strictly  follow  the  letter  of  the  law 
in  regard  to  the  public  surveys,  owing  to  the  convergency  of 
the  meridians,  an  inequality  develops,  increasing  as  the  lati- 
tude grows  higher.  The  excess  or  deficiency  is  added  to  or 
deducted  from  the  western  or  northern  ranges  of  sections  or 
half  sections  in  each  township  according  as  the  error  may  be 
in  running  the  line  from  east  to  west  or  from  north  to  south. 
To  obviate,  in  some  measure,  the  errors  that  otherwise  would 
result  from  the  convergency  of  meridians,  standard  parallels, 
or,  as  they  are  usually  termed,  "  correction  lines,"  are  estab- 
lished at  stated  intervals,2  while  what  are  known  as  "  guide 
meridians  "  are  also  surveyed  at  regular  distances.3 

The  townships  bear  numbers  in  respect  to  the  base  line, 
either  north  or  south  of  it,  and  the  ranges  bear  numbers  in 

of  its  invention  is  usually  accord-  ian  and  constitute  special  bases  for 
ed,  but  beyond  the  committee's  re-  township  lines  lying  north  thereof, 
port,  its  origin  is  not  positively  Such  lines  are  run  and  marked  at 
known.  It  is  thought  the  square  every  four  townships,  or  twenty- 
form  of  States,  provided  in  Vir-  four  miles  north  of  the  base,  and 
ginia's  deed  of  cession  of  her  west-  at  every  five  townships,  or  thirty 
ern  territory,  may  have  influenced  miles,  south  of  same. 
Mr.  Jefferson  in  favor  of  a  square  3  Guide  meridians  are  surveyed  at 
form  of  surveys,  although  in  the  distances  of  every  eight  ranges  of 
colony  of  Georgia  a  square  form  of  townships,  or  forty-eight  miles,  east 
surveying  had  been  in  vogue  in  and  west  of  the  principal  meridian : 
eleven  townships  for  fifty  years  the  guides  north  of  the  principal 
prior  thereto.  base  starting  either  from  it  or  from 

2  Correction    lines    are    run    east  standard  parallels, 
and  west  from  the  principal   merid- 


SURVEYS,    PI.ATS    AND    SUBDIVISIONS. 


191 


respect  to  the  meridian  line  according  to  their  relative  position 
to  it  either  east  or  west 

The-  sections  are  the  smallest  tracts,  the  out  boundaries  of 
which  the  law  requires  t)  be  actually  surveyed.  Their  minor 
subdivisions  are  defined  by  law  and  are  designated  by  imag- 
inary lines  dividing  the  sections  into  four  quarters  of  160 
acres  each,  and  these  'n  turn  into  quarter-quarter  sections,  of 
40  acres  each.  The  thirty-six  sections  into  which  a  town- 
ship is  subdivided  are  numbered  consecutively  commencing 
with  section  one  at  the  northeast  angle  and  proceeding  west 
to  section  six;  thence  proceeding  east  the  sections  number  to 
twelve  and  so  on  alternately  until  the  number  thirty-six  in 
the  southeast  angle.4     The  accompanying  diagram  will  serve 


N 

Town   1  Nor 

th 

6 

5 

4 

3 

2 

1 

7 

8 

9 

10 

11 

12 

-t-> 

<n 

* 

*> 

M 

a 

aS 

« 

18 

17 

16 

15 

14 

13 

19 

20 

21 

22' 

23 

24 

30 

29 

28 

27 

26 

25 

31 

32 

33 

34 

35 

36 

E 


BASE  LINE 
S 

4  See  Zabriskie's  or  Lester's  U.  S.       important     topics.     The     lines     and 
Land  Laws  for  full  details  of  these       corners   of   land   established   by   the 


192  ABSTRACTS    OF    TITLE. 

to  illustrate  the  method  of  running  the  exterior  lines  of  town- 
ships and  sections. 

The  official  township  plats,  of  which  mention  has  already 
been  made,  will  furnish  all  the  information  necessary  to  a 
thorough  understanding  of  each  particular  township,  and 
show,  in  addition  to  a  general  topographical  delineation  of 
the  surveyed  territory,  the  exact  area  of  each  section,  excesses, 
deficiencies,  meanders  of  navigable  streams,  islands  and  lakes 
and  all  other  details  necessary  for  surveying  or  subdivision; 
as,  witness  monuments,  section  and  quarter  section  corners,  etc. 

§  163.  Subdivision  of  Sections.  Although  the  section 
is  the  smallest  division  of  public  land,  the  lines  of  which 
are  actually  run  by  the  government  surveyors,  smaller  divisions 
are  contemplated  by  law  and  provision  is  always  made  for 
their  ready  ascertainment,  which  is  done  by  running  true  lines 
from  one  established  point  to  another.  These  legal  subdi- 
visions vary  from  a  quarter  section,  containing  160  acres,  to 
a  "quarter-quarter"  section,  containing  but  40  acres.  The 
shape  and  area  of  the  sectional  subdivisions  will  be  better  un- 
derstood, perhaps,  by  reference  to  the  following  diagram. 

The  illustration  contemplates  only  an  ordinary  survey, 
where  no  obstacles  intervene  to  interrupt  the  symmetry  of 
the  map,  or  interfere  with  the  running  of  the  lines,  nor 
does  it  provide  for  deficiencies  or  excesses,  which  will  usually 
occur  in  sections  1,  2,  3,  4,  5,  6,  7,  18,  19,  30  and  31,  the 
greatest  discrepancy  being  found  in  section  6.  The  section 
lines  are  surveyed  from  south  to  north  on  true  meridians,  and 
from  east  to  west,  in  order  to  throw  the  excesses  or  deficiencies 

government    surveys    when    it    was  true    line,    they   are   estopped    from 

first  surveyed,  platted  and  recorded  asserting    another    and    a    different 

must  control,  when  they  can  be  as-  line:     Yates  v.   Shaw,   24   111.   367; 

certained   and  identified;    but   when  Thomas  v.  Sayles,  63  111.  363.     But 

such      lines     and     corners     are     in  parties    holding    simply    an    agree- 

doubt,  and  a  matter  of  much  uncer-  ment    that     might    ripen     into     an 

tainty  and  dispute,  the  parties  may  equity  can  not  make  agreements  as 

settle  them    and   thus    end   the   dis-  to    surveys    which    will    be    binding 

pute:    and   when   they   have   agreed  on  a  subsequent  holder  of  the  legal 

upon  the  position  of  such  bound-  title:  Sawyer  V.  Cox,  63  111.  130. 
ary,  and  have  acted  upon  it  as  the 


SURVEYS,    PLATS    AND    SUBDIVISIONS. 


193 


N 


W 


40   A 

40   A 

80   A 

NWJ 

N    E    \ 

N  £ 

N 

W  i 

S  E  i 

"NT   TT1    1 

SW{ 

Si 

40   A 

40   A 

80  A 

E 

aA 

0 

r 

1 

u. 

HN 

swi 

S 

Ei 

© 

w  \ 

E  \ 

'i 

160  A 

80   A 

80  A 

I 

r 

a—    /-» 

V 

1-1  oec.  kjutiwt. 

s 

in  measurement  on  the  north  and  west  sides  of  the  township, 
and,  as  the  sphericity  of  the  earth  must  necessarily  interfere 
with  the  correctness  of  measurements  calculated  for  a  level 
area,  it  will  be  found  that  the  sections  and  half-sections  on 
the  northern  and  western  lines  of  a  township  will  always  vary 
from  the  prescribed  legal  standard.  The  legal  presumption  is, 
however,  that  the  section  contains  640  acres. 

The  section  and  quarter  section  corners  are  established  as 
indicated  in  the  diagram;  the  half  quarter  sections  are  not 
marked  in  the  field,  but  are  regarded  by  the  law  as  points 
intermediate  between  the  half  mile,  or  quarter  section  corners.5 

The  smallest  parcel  indicated  on  the  foregoing  map  is  a 
quarter-quarter  section,  with  an  area  of  40  acres,  this  being 
the  limit  of  subdivision  recognized  by  the  government.  Tf 
required,  however,  this  tract  may  be  divided  in  the  same  man- 


5  Act  of  April  24,   182 
13 


194 


ABSTRACTS    OF    TITLE. 


ner  as  a  section  and  the  various  parts  described  by  the  same 
general  terms. 

Where  navigable  lakes,  streams,  etc.,  intercept  the  surveys, 
they  produce  fragmentary  divisions  known  as  "  fractional " 
sections,  quarters,  etc.,  the  divisions  of  a  fractional  section  be- 
ing also  known  as  "  lots."  Meander  corner  posts  are  estab- 
lished at  all  those  points  where  township  or  section  lines  inter- 
sect the  banks  of  such  rivers,  bayous,  lakes,  or  islands  as  are 
by  law  directed  to  be  meandered,  and  the  courses  and  distances 
on  meandered  navigable  streams  govern  the  calculations 
wherefrom  are  ascertained  the  true  areas  of  the  tracts  binding 
on  such  streams.  In  the  sale  of  such  fractional  tracts  or  lots, 
which  always  conform,  as  near  as  may  be,  to  the  size  and  shape 
of  the  regular  subdivisions,  the  specific  lot  is  sold  by  the  acre- 
age as  returned  by  the  government  surveyors,  and  reference  is 
always  made  .to  the  field  notes  and  plats  for  certainty  of  de- 
scription, boundary,  etc.  The  annexed  diagram  will  serve  to 
illustrate  the  subject  more  fully: 


SURVEYS,    PLATS   AND    SUBDIVISIONS.  195 

While  meander  lines  follow,  in  a  general  way,  the  sinuos- 
ities of  the  bank  of  the  stream  or  lake,  yet  the  lines  themselves 
are  always  straight.  This  is  necessary  for  the  purpose  of  ac- 
curate measurement.  Their  only  office,  however,  is  to  facili- 
tate measurement ;  they  do  not  constitute  boundaries  of  the 
tract.     The  water  is  always  the  boundary.6 

Interspersed  throughout  the  rectangular  surveys  of  the  pub- 
lic domain,  are  surveys  of  numerous  bodies  of  land  of  anoma- 
lous and  irregular  forms  covered  by  titles  known  as  "  Private 
Land  Claims,"  which  the  government  of  the  United  States, 
under  treaty  obligations,  or  from  other  considerations,  has  con- 
firmed. These  titles  derive  their  origin  from  rights  acquired 
under  the  sovereignty  which  once  held  dominion  over  the  terri- 
tory now  constituting  part  of  the  Union,  and  from  donations 
under  the  laws  of  the  United  States.  The  surveys  of  such 
titles  are  in  strict  accordance  in  measurement,  form,  and  ex- 
tent with  the  land  system  of  the  government  from  which  the 
titles  are  derived. 

In  compiling  the  abstract  it  is  advisable  to  prefix  thereto  a 
sketch  of  the  government  survey  as  shown  by  the  official  town- 
ship plats,  and  particularly  should  this  be  done  when  the  sub- 
ject of  the  examination  consists  of  a  fractional  section  or  lot. 
Such  sketch  will  be  of  great  service  to  counsel  and  serve  to 
illustrate  and  define  the  boundaries  of  the  land  far  better  than 
any  verbal  description  can.  Where  land  binds  upon  a  naviga- 
ble meandered  stream  or  lake,  accretions  and  relictions  will 
occur,  materially  changing  the  shore  line,  and  here  the  sketch 
will  prove  very  serviceable  in  fixing  the  original  boundaries,  as 
well  as  in  determining  present  rights. 

§  164.  Rectangular  Surveying.  The  rectangular  sys- 
tem of  surveying  above  described  has  now  been  in  operation  in 
the  United  States  for  more  than  one  hundred  years.7  Its  ad- 
vantages over  other  methods  consist  in  its  economy,  simplicity 

6  This     is     particularly     true     in  7  It    was    formally    adopted    May 

those     States     where     the     bed     of      20,  1785. 
streams   and    lakes    belongs    to   the 
State. 


196  ABSTRACTS    OF    TITLE. 

in  the  process  of  transfer,  brevity  of  description  in  deeding  the 
land  by  patents,  and  in  the  convenience  of  reference  of  the 
most  minute  legal  subdivision  to  the  corners  and  lines  of  sec- 
tions,8 the  convenient  mode  of  subdividing  sections  with  a  view 
to  economy  and  to  facilitate  sales  of  small  tracts  being  an  essen- 
tially marked  feature.  The  principal  base,  principal  meridian, 
standard  parallels  and  guide  meridians  constitute  the  frame- 
work of  the  rectangular  system  of  public  surveys,  and  there 
are  at  present  permanently  established  twenty-three  principal 
bases  and  thirty  principal  meridians,9  controlling  the  public 
surveys  in  the  land  States  and  territories. 

As  a  general  rule,  the  public  surveys  are  governed  by  one 
principal  base  and  principal  meridian,  but  in  a  few  districts 
and  on  the  Pacific  slope,  a  number  of  different  initial  points 
are  necessitated  by  abrupt  mountains  throughout  the  district. 
The  lines  of  public  surveys  over  level  ground  are  measured 
with  a  four-pole  chain  of  sixty-six  feet  in  length,10  eighty 
chains  constituting  a  mile;  but  where  the  features  of  the  coun- 
try are  broken  and  hilly,  a  two-pole  chain  is  used.  The  lines 
and  corners  thus  run  are  marked  and  perpetuated  by  blazing 
trees,  stones,  mounds  or  other  monuments,  the  witness  monu- 
ments, bearings  and  distances  being  ascertained  and  described 
in  the  field  notes. 

The  boundaries  and  contents  of  the  several  sections  and  quar- 
ter sections  are  ascertained  in  conformity  to  the  following 
rules :  "  The  boundary  lines  actually  run,  and  marked  in 
surveys  returned,  shall  be  established  as  the  proper  boundary 
lines  of  the  sections  or  subdivisions  for  which  they  were  in- 
tended; and  the  length  of  such  lines,  as  returned,  shall  be 
held  and  considered  as  the  true  length  thereof;  and  the  bound- 

8  See  Znbriskie's  Land  Laws,  508 ;  10  Commonly  known  as  a  "  Gun- 
Instructions  Commr.  Gen.  Land  ter's  chain."  It  is  composed  of  one 
Office,  May  3,  1881 ;  Government  hundred  links.  Twenty-five  of  these 
Manual   of  Surveying,   1883.  links   make   one   rod,    but,   in   prac- 

9  These  are  divided  into  six  nu-  tice,  rods  are  now  seldom  used,  dis- 
merical  meridians  and  twenty-four  tances  being  taken  in  chains  and 
independent  meridians  named  after  links.  See  appendix  for  tables  of 
the  locality  which  they  control.  measures. 


SUBVEYS,    PLATS    AND    SUBDIVISIONS.  197 

ary  lines  which  shall  not  have  been  actually  run  and  marked 
as  aforesaid,  shall  be  ascertained  by  running  straight  lines  from 
the  established  corners  to  the  opposite  corresponding  corners ; 
but  in  those  portions  of  the  fractional  townships  where  no 
such  opposite  corresponding  corners  have  been  or  can  be  fixed, 
the  said  boundary  line  shall  be  ascertained  by  running  from 
the  established  corners  due  north  and  south  or  east  and  west 
lines  (as  the  case  may  be)  to  the  water-course  or  other  external 
boundary  of  such  fractional  township."  n 

§  165.  Meander  Lines.  Meander  lines  are  run,  in  sur- 
veying fractional  portions  of  the  public  lands  bordering  on 
navigable  rivers,  not  as  boundaries  of  the  tract,  but  for  the  pur- 
pose of  defining  the  sinuosities  of  the  bank  of  the  stream,  and 
as  the  means  of  ascertaining  the  quantity  of  land  in  the  frac- 
tion subject  to  sale,  and  which  is  to  be  paid  for  by  the  pur- 
chaser.12 Fractional  divisions,  made  so  by  the  interference 
of  water,  are  designated  and  sold  by  the  numbers  attached  to 
the  lots,  and  reference  is  always  had  to  the  notes  of  survey. 
The  wrater  indicated  in  these  notes  is  always  the  boundary,  and 
where  there  exists  a  difference  between  the  meandered  line  as 
run  and  the  existing  line  of  the  water-course,  the  latter  and 
not  the  former  is  to  be  considered  the  true  boundary.13  Yet, 
though  a  meandered  line  is  generally  considered  as  following 
the  windings  of  a  stream,  it  seems  the  question  whether  it  does 
so  or  not  may  always  be  determined  by  evidence  aliunde,  and 
the  mere  fact  that  it  is  run  and  designated  upon  the  plats  as  a 
meandered  line  is  not  conclusive  against  the  government ;  thus, 
it  has  been  held,  that  an  entry  of  government  land,  bounded 
by  a  meandered  line,  does  not  include  land  lying  at  the  time 
between  such  meandered  line  and  the  bank  of  the  river.14  So, 
too,  while  the  meander  line  is  not,  in  strict  sense,  a  boundary, 

ill   Stat,  at  Large,  446;   2  Stat.  233:    Houck    V.   Yates,   82    111.    179; 

at  Large.  73;    2  do.  313.  Lamprey    V.   State.   52   Minn.    181. 

12  R.  U.  Co.  i'.  Schurmeir,  7  Wall.  14  Lammtis  r.  Nissen,  -!  Neb.  245. 
(U.  S.)  272;  Lamprey  v.  State,  52  But  see  Wright  v.  Day,  33  Wis. 
Minn.    181.  260,  and  authorities  last  cited. 

1 3  Boorman  V.  Sunnucks,  42  Wis. 


198  ABSTRACTS    OF    TITLE. 

yet  if  there  is  no  body  of  water  corresponding  to  the  meander 
line,  to  which  the  ownership  of  adjoining  lands  extends,  then 
the  line  limits  the  extent  of  the  land  conveyed.15 

Where  fractional  pieces  of  land  are  patented,  bounded  in 
part  by  a  stream  or  bayou,  the  original  plat  may  be  resorted 
to,  and  the  lines  as  originally  run  will  control.  This  is  the 
rule  adopted  in  determining  controversies  between  contiguous 
jjroprietors  of  fractional  lands,  the  patentees,  and  those  claim- 
ing under  them,  being  restricted  to  the  boundaries  as  shown 
by  the  plats  and  field  notes.  In  all  cases,  where  land  is  made 
fractional  by  a  navigable  water-course,  the  patentee  purchases 
by  the  plat,  and  a  patent  for  a  fractional  part  of  a  quarter 
section  on  one  side  of  a  water-course,  where  the  area  sold  is 
noted  on  the  plat  of  the  fractional  tract  called  for  by  the  pat- 
ent, will  not  extend  his  entry  and  purchase  across  the  stream, 
so  as  to  embrace  that  part  of  the  quarter  on  the  other  side.16 

§  166.  Plats  and  Subdivisions.  Agricultural  lands  sel- 
dom receive  any  other  subdividing  than  that  afforded  by  the 
government  survey,  but  in  cities,  towns  and  villages,  the  ne- 
cessities of  society  require  a  most  minute  subdivision  into  what 
are  popularly  termed  blocks  and  lots.17  Original  subdivisions 
again  become  the  subject  of  resubdivisions,  and  these  in  turn 
are  not  infrequently  divided  to  meet  the  exigencies  of  social 
or  business  relations.  The  formal  act  of  resurveying  is  techni- 
cally termed  a  subdivision;  the  result  of  the  survey,  when  pro- 
jected upon  paper,  a  plat. 

15  As  where  a  meandered  lake  custom  of  dividing  grants  into  par- 
had  dried  up.  Carr  v.  Moore,  119  eels  and  then  numbering  each  par- 
Iowa,  152.  eel.     The    numbers    would    then    be 

16  MeCormick  V.  Huse,  78  III.  placed  in  a  hat,  or  some  other  re- 
363.  ceptacle.    and    drawn   out   by    those 

i  T  The    term    "  lot "    seems    to   be  among   whom    the   land    was   to    be 

peculiar    to    American    land    parcel-  divided.     Each     man     would     then 

ing.     Its     origin     is     unknown.     It  take  the  parcel  corresponding  to  the 

does  not  appear  to  have   any   affin-  number   he  had    drawn,   and   as   his 

ity  with  the  term  as  used  in  other  land  had  come  to  him,  literally,  by 

connections,    as    "  a    lot    of    goods,"  lot,    it    soon    became    customary    to 

etc.     It   is   said   that   the   word,   in  speak  of  the  land  as  a  lot,  and  the 

connection  with  land,  originated   in  usage  has  ever   continued, 
the   colonies    and   grew    out    of   the 


SURVEYS,   PLATS   AND   SUBDIVISIONS.  190 

These  subdivisions  and  plats  play  an  important  part,  both 
in  conveyancing  and  in  the  examination  of  titles,  and  upon 
them  no  small  portion  of  the  validity  of  land  titles  rests.  In 
every  community  of  any  appreciable  size,  lands  are  conveyed 
and  described  with  special  reference  to  these  plats  and  subdi- 
visions, the  government  survey  being  referred  to  only  inci- 
dentally and  for  the  purpose  of  greater  certainty  in  locating 
the  particular  tract  which  forms  the  subject  of  the  plat.  They 
form  equally  as  important  features  in  preparing  an  abstract 
as  the  title  deeds  there  shown,  and  require  the  same  degree 
of  care  from  the  examiner  in  their  exposition.  Where  a  deed 
of  conveyance  gives  no  other  description  of  the  land  than  the 
lot  or  block  of  a  survey  or  subdivision,  the  authentic  plat  of 
such  survey  is  as  much  a  part  of  the  deed  as  if  set  out  in  it,18 
and  a  reference  to  a  plat  is  as  effective  by  way  of  estoppel  as 
express  words  of  grant  or  covenant.19  A  reference  to  a  plat 
by  lot  and  block  has  usually  a  more  controlling  influence  than 
a  special  description,  and  when  a  designation  by  lot  is  followed 
by  a  description  by  metes  and  bounds  embracing  an  area  less 
than  the  lot,  it  has  been  held  to  import  an  intent  of  the  grantor 
to  convey  the  whole  lot,  the  law  presuming  the  addition  to  be 
merely  an  effort  to  give  a  more  particular  description.20 

§  167.  Formal  Requisites.  The  formalities  attending 
the  platting  and  subdividing  of  land  are  the  subject  of  express 
statutory  regulation  in  all  the  States,  and,  unlike  deeds,  there 
are  no  common  or  uniform  methods,  each  State  providing  its 
own  system  of  platting  and  authentication.  Ordinarily  the 
plat  must  show  the  shape  and  exterior  boundaries  of  the  land 
it  is  intended  to  represent,  and  of  each  subdivision  thereof; 
the  length  and  courses  of  all  boundary  lines ;  the  monuments 
erected  in  the  field ;  and  the  name  of  the  tract  so  divided,  as 
well  as  the  streets,  alleys,  etc.,  shown  thereon,  together  with  the 
width  of  such  streets,  alleys,  etc.  Appended  to  the  plat  there 
must  usually  be  a  description  of  the  land  surveyed,  officially 
certified  by  the  surveyor  and  a  certificate  of  acknowledgment 

isDolde  v.  Vodicka,  49  Mo.  100;      577;  Cox  v.  James,  45  N.  Y.  557. 
Powers   v.  Jackson,  50  Cal.  429.  20  Rutherford    v.    Tracy,    48    Mo. 

io  Baxter    v.    Arnold,    114    Mass.       325. 


OQQ  ABSTRACTS    OF    TITLE. 

by  the  owner  or  owners  of  the  land.  In  addition,  municipal 
regulations  sometimes  require  an  approval  by  the  civic  au- 
thorities. The  foregoing,  or  similar  requirements,  are  usually 
made  indispensable  requisites  to  registration,  and  their  faithful 
observance  is  necessary  to  give  validity  to  the  subdivision.  As 
a  rule,  no  field  notes  are  required,  the  dimensions  shown  upon 
the  plat  being  sufficient  for  all  practical  purposes. 

Plats  are  usually  recorded  in  the  registry  of  deeds  in  spe- 
cial books,  though  this  is  not  a  uniform  practice,  and  where 
no  specific  regulation  exists  they  will  also  be  found  in  other 
places.  Thus,  arbitrary  divisions  made  by  the  assessor  for 
the  purposes  of  taxation  will  frequently  be  found  in  the  office 
of  the  auditor  or  clerk  of  the  county;  plats  made  by  the  order 
of  a  court  of  chancery  in  partition,  and  other  cases,  will  be 
found  among  the  records  and  archives  of  the  court,  though  these 
observations  rather  apply  to  what  has  been  than  to  present 
practices.  At  the  present  time  all  plats,  particularly  in  the 
newer  States,  are  required  to  be  filed  with  the  recorder  of 
deeds.  The  following  will  serve  as  a  precedent  for  abstracting 
a  plat  and  subdivision,  the  minor  details  of  which  must  be 
varied  to  suit  the  demands  of  local  legislation. 


Subdivision 

by 

William  Smith 


Plat,  entitled  [here  set  out  the  title 
-  as  found  on  the  plat,  and  proceed  as 
hereinafter  shown]. 


Or,  if  desired,  commence  it  thus : 

Plat  entitled  as  in  the  margin. 

Recorded  June  2,  1891. 

Booh  2  of  Plats,  page  25. 

Surveyor's  certificate,  by  Jason 
'Lothrop,  dated  June  1,  1881,  certifies 
that  he  has  surveyed  the  northeast 
quarter,  etc.,  [set  out  description  by 
surveyor]  into  lots  and  blocks,  as 
shoivn  upon  the  annexed  map,  and 
that  siid  map  is  a  correct  representation  of  all  the  exterior 

21  This  is  taken  from  the  title  of    the   plat,   and   should   consist   of   a 
literal  transcription. 


Smith  Subdivision  21 

of 
The  northeast  quarter 
of  the  northwest  quar- 
ter of  Section  10, 
Town  13  North, 
Bange  21,  east  of  the 
3d  P.  M. 


STJBVEYS,    PLATS    AX  I)    SUBDIVISIONS. 

boundaries  of  the  land  surveyed,  and  of  the  divisions  thereon 
made ,  and  further  certifies  that  said  survey  and  map  was  m 
by  the  order  and  direction  of  William  Smith,  and  that  he  has 
fully  complied  with   all  the  provisions  of  law  in  surveying, 
subdividing  and  mapping  same. 

[Should  notes  of  survey  be  filed  in  addition  to  the  map,  they 
may  be  shown  or  not  in  the  discretion  of  the  examiner,  or  as 
his  client  may  direct.] 

Acknowledged  by  William  Smith,  as  owner,  June  2,  1881. 

Said  map  is  as  follows  (or),  by  direction,  we  omit  the  map. 

Usually,  if  the  map  is  small,  it  is  customary  to  insert  it. 
If  very  large,  then  only  such  portion  need  be  set  out  as  is  nec- 
essary to  show  the  relative  location,  shape,  boundaries  and  dis- 
tances of  the  particular  lot  or  lots  under  examination. 

In  this  event,  the  concluding  paragraph  should  read: 

So  much  of  said  map  as  relates  to  the  property  in  question 
is  as  follows: 

It  is  recommended  that  whenever  practicable  the  plat  or 
some  portion  of  it  be  shown.  It  is  usually  of  considerable  as- 
sistance to  counsel,  and  if  the  examination  involves  niceties  in 
measurements,  or  conflicting  claims  of  contiguous  proprietors, 
it  is  indispensable.  If  the  law  requires  attesting  witnesses  any 
defect  of  this  nature  should  be  noted,  as  also  any  imperfect 
or  defective  execution.  Plats  and  subdivisions  made  by  ex- 
ecutors, administrators  and  guardians,  as  well  as  in  partitions 
between  heirs  and  tenants  in  common  are  frequently  made 
under  the  direction  and  sanction  of  a  court  of  equity,  and  in 
this  event  a  general  synopsis  of  the  proceedings  in  court,  as 
well  as  the  acts  of  the  owners  or  parties  interested,  should  be 
shown. 

§  1G8.  Effect  of  Registration*  When  duly  executed,  ac- 
knowledged and  recorded,  as  provided  by  law,  a  certified  copy 
of  a  plat  and  subdivision  may  be  used  in  evidence  to  the  same 
extent  and  with  like  effect  as  in  case  of  deeds,  and  by  statute 


202  ABSTRACTS    OP   TITLE. 

such  registration  and  acknowledgment  is  usually  made  to 
operate  as  a  conveyance  in  fee  simple  of  those  portions  of  the 
platted  lands  as  are  marked  or  noted  on  such  plat  as  donated 
or  granted  to  the  public,  or  any  society,  corporation  or  body 
politic,  and  as  a  general  warranty  against  the  donor,  his  heirs 
and  representatives,  to  such  donee  or  grantee  for  their  use,  or 
for  the  use  and  purposes  therein  named  or  intended,  but  for 
no  other  use.  The  parts  intended  for  streets,  alleys,  ways, 
commons,  or  other  public  uses,  are  held  in  the  corporate  name 
of  the  municipality  in  trust  for  the  uses  and  purposes  set  forth 
or  intended.22  Selling  by  a  plat  which  has  not  been  recorded 
is  a  misdemeanor  in  many  of  the  States. 

§  169.  Vacation  and  Cancellation.  The  making  of  plats 
and  subdivisions  being  regulated,  in  the  main,  by  statute,  no 
uniform  rules  can  be  given  as  to  the  method  of  vacation  or 
cancellatipn,  and  recourse  must  be  had  to  local  law,  as  in  the 
case  of  platting  and  recording.  Ordinarily  a  plat  may  be  va- 
cated by  the  owner  of  the  property,  at  any  time  before  he  has 
disposed  of  any  part  thereof,  by  a  written  instrument  declar- 
ing such  intention,  executed,  acknowledged  or  proved,  and  re- 
corded in  like  manner  as  deeds  of  land.  Such  a  declaration, 
duly  recorded,  usually  operates  to  destroy  the  force  and  effect 
of  the  recording  of  the  plat  so  vacated,  and  divests  all  public 
rights  in  the  streets,  alleys,  public  grounds,  etc.,  laid  out  or 
described  in  such  plat.23  The  record  of  the  plat  so  vacated 
should  also  refer  to  the  vacation. 

The  foregoing  describes  the  common  and  most  simple  man- 
ner of  vacation.  In  some  States,  however,  more  formality  is 
required,  frequently  rendering  necessary  the  intervention  of  a 
court,  as  well  to  authorize  the  initiation  of  proceedings  as  to 
approve  of  such  as  may  be  taken.24  Where  an  application  is 
required  to  be  made  to  a  court,  notice  is  also  required  to  all 
whom  it  may  concern.     In  the  former  case  of  vacation  a  syn- 

22  See  R.  S.  111.  1845,  p.  115;  do.  23  R.  S.  111.  1874,  Chap.  109,  §  6. 

1874,  p.   771;   R.   S.   Wis.    1878,   p.  24  R.    g.    Wis.    1878,    Chap.    101, 

645 ;     see     infra,     "  Dedication     by  §  2265. 
Plat,"  page  179. 


SURVEYS,   PLATS   AND  SUBDIVISIONS.  203 

opsis  of  tlie  instrument  filed  is  all  that  is  necessary  in  the  ab- 
stract; in  the  latter,  a  resume  of  the  steps  taken  as  well  as 
the  judgment  or  order  of  the  court  is  necessary.  The  effect  is 
practically  the  same  in  either  case  both  as  to  the  owners  and 
the  public.  When  made  by  a  declaratory  statement,  the  ab- 
stract would  be  substantially  as  follows : 


Vacation  25 

of 
The  plat  of  River- 
dale,  being  Fred. 
Schmidt's  subdivi- 
sion of  part  of  the 
south  2,800  chains  of 
the  southeast  quarter 
of  section  33,  town  31 
north,  range  IJf,  east. 


Declaration  of  vacation. 
Dated  Jan.    31,   1883. 
Recorded  Jan.  31,  1883. 
Booh  852,  page  210. 
Recites,     that     Frederick     Schmidt, 
who  is  the  sole  owner  of  all  the  lands 
and  lots  covered  by  blocks  5,  6,  1,  8,  9, 
10  (etc.),  of  Frederick  Schmidt's  sub- 
division   of    part    of    the    south    2,300 
chains  of  the  southeast  quarter  of  sec- 
tion 33,  town  31  north,  range  llf.  east 
of  the  3d  P.  M.  in  the  County  of  Cook,  and  State  of  Illinois, 
recorded  June  21,  181  k,  in-  book  1  of  plats,  page  83,  under  the 
provisions  of  the  statute,  sets  aside  the  subdivisions  referred 
to  and  vacates  the  same  for  the  purpose  of  restoring  the  prop- 
erty to  its  original  condition,  meaning  and  intending  to  declare 
vacated,  and  does  declare  vacated  the  whole  of  said  plat. 
Acknowledged  Jan.  31,  1883. 

Whenever  practicable,  a  vacation  should  immediately  follow 
the  abstract  of  the  subdivision  and  plat  thereby  affected.  This 
can  always  be  done  where  no  conveyances  have  been  made. 
Where  portions  of  the  property  have  been  sold  and  the  owners 
join  in  the  execution  of  the  vacation,  the  deeds  to  them  will  in- 
tervene in  chronological  order.  As  a  rule,  there  can  be  no  vaca- 
tion of  a  portion  of  a  plat  containing  a  dedication  of  land  to 

25  Instead  of  this  caption  the  ex-       out  the  title  of  the  plat  vacated  in 
aminer     may     say,     "  Vacation     by      the  right-hand   margin. 
Frederick    Schmidt,"    and    then    set 


204  ABSTBACTS    OF    TITLE. 

a  public  use  unless  all  of  the  owners  of  all  lots  sold  with  refer- 
ence thereto  join  in  the  proceeding.26 

§  170.  Dedication  by  Plat.  Where  a  dedication  to  pub- 
lic use  is  sought  to  be  established  from  the  acquiescence  of 
the  owner  in  the  use  of  the  property  by  the  public,  or  from 
acts  or  declarations  of  an  equivocal  character,  which  are  con- 
sistent with  a  dedication  to  the  public  use,  or  to  the  mere  per- 
missive use  by  the  public  for  a  temporary  though  indefinite 
period  of  time,  the  intention  of  the  owner  in  permitting  such 
use  is  unquestionably  of  controlling  influence  and  importance 
in  determining  whether  property  has  been  dedicated  by  the 
owner  to  public  use  or  not.27  But  where  the  dedication  is 
clearly  manifested  by  unequivocal  acts  or  declarations,  upon 
which  the  public  or  those  interested  in  such  dedications  have 
acted,  the  fact  that  the  owner  may  have  entertained  a  different 
intention  from  that  manifested  by  his  acts  or  declarations  is 
of  no  consequence.28  Therefore,  if  the  owner  of  land  subdi- 
vides and  plats  the  same,  or  lays  out  and  establishes  a  town 
or  any  addition  thereto,  and  makes  and  exhibits  a  map  or  plan 
of  such  town  or  addition,  with  streets,  alleys,  public  squares, 
etc.,  and  sells  the  lots  with  reference  to  such  map  or  plan,  the 
purchasers  acquire,  as  appurtenant  to  their  lots,  all  such  rights, 
privileges,  easements  and  servitudes  represented  by  such  map 
or  plan  to  belong  to  them,  or  to  their  owners,  and  the  sale  and 
conveyance  of  lots  according  to  such  map  implies  a  grant  or 
covenant,  for  the  benefit  of  the  owners  of  the  lots,  that  the 
streets  and  other  public  places  represented  by  the  map  shall 
never  be  appropriated  by  the  owner  to  a  use  inconsistent  with 
that  represented  by  the  map  on  the  faith  of  which  the  lots  are 
sold.29 

If  the  owner  of  land  indicates  by  the  map,  or  other  un- 

26  Village   of  Lee   V.   Harris,   206  28  Lamar  County  v.  Clements,  49 

111.  428.  Tex.   347. 

2"  Dillon  Mun.  Corp.  §  498;  Irwin  29  Lamar  County  v.  Clements,  49 

V.  Dixon,  9  How.  30;  Manderschild  Tex.  347;  Huber  v.  Gazley,  18  Ohio, 

V.  Dubuque,   29   Iowa,   73;    Godfrey  18;  Logansport  v.  Dunn,  8  Ind.  378; 

v.  City  of  Alton,  12  111.  29;  Rees  v.  Beaty  v.  Kurtz,  2  Pet.  566. 
Chicago,   38   111.   322. 


SUKVEYS,    PLATS    AXD    SUBDIVISIONS.  205 

equivocal  acts  or  declarations,  that  a  particular  lot  or  square  is 
to  be  reserved  or  applied  to  a  particular  or  specific  use,  of  a 
quasi  public  character,  and  such  as  to  induce  purchasers  of 
contiguous  or  neighboring  lots  to  give  a  higher  price  than  they 
otherwise  would,  the  use  to  which  such  lot  was  to  be  appro- 
priated would  no  doubt  be  a  reservation,  and  not,  strictly  speak- 
ing,  a  dedication  to  public  use.  But,  nevertheless,  the  differ- 
ence, so  far  as  the  owners  of  lots  purchased  on  the  faith  of  such 
reservation  are  concerned,  is  merely  nominal,  for  the  owner  of 
the  property  who  thus  sells  it  is  estopped  from  appropriating 
the  land  so  reserved  to  a  purpose  inconsistent  with  that  for 
which  it  was  reserved,  or  he  will  be  held  by  such  sale  to  have 
created  a  servitude  in  the  property  reserved  in  favor  of  the 
dominant  estate,  which  he  has  conveyed,  which  will  prevent 
his  applying  the  reserved  property  to  any  other  purpose  than 
that  for  which  it  was  reserved.30 

As  a  general  proposition  the  fee  does  not  pass  by  a  dedication 
but  remains  in  the  original  proprietor  burdened  with  the  pub- 
lic use ;  but  in  a  statutory  dedication,  by  making  and  recording 
a  plat,  the  fee  passes  as  an  incident  and  is  held  by  the  mu- 
nicipality for  the  use  and  benefit  of  the  public.31  An  impor- 
tant distinction  will  therefore  be  made  between  a  common-law 
and  a  statutory  dedication. 

As  a  necessary  sequence,  where  the  title  of  one  who  makes 
a  dedication  fails,  the  dedication  also  fails;  but  if  the  owner 
of  the  title  recognizes  the  dedication,  as  where  there  has  been 
a  plat  made  by  the  one  whose  title  has  failed  and  the  true  owner 
deeds  lands  according  to  the  plat,  he  will  be  estopped  from  de- 
nying the  dedication.32 

'  §  171.  Be-surveys.  Occasionally  re-surveys  are  made, 
when,  by  reason  of  time  or  circumstance,  the  original  survey 
fails  to  furnish  the  desired  information.  The  only  object  of 
a  re-survey  is  to  determine  the  lines  of  the  original,  and  hi 

30  ITarrison  v.  Boring,  44  Tex.  R.  R.  Co.  v.  Joliet,  70  Til.  2.-).  This 
255;  Com.  v.  Rush,  14  Perm.  St.  is  statutory.  Consult  local  Btat- 
180.  utes. 

31  Manly  v.  Gibson,   13   111.   308;  32  Gridley  v.  Hopkins,  84  111.  528. 


206  ABSTRACTS    OF    TITLE. 

it  will  never  be  permitted  to  change  or  alter  the  lines  of  the 
old  survey  whenever  such  lines  can  be  ascertained  from  monu- 
ments or  other  authentic  data.  In  every  instance  the  monu- 
ments set  by  the  original  survey  and  named  or  referred  to  in 
the  plat,  are  the  highest  and  best  evidence  from  which  to  de- 
termine lines.  If  these  are  lacking  the  stakes  set  by  the  sur- 
veyor may  be  resorted  to,  and,  in  the  event  that  these  can  not 
be  found,  buildings  or  permanent  erections  shown  to  have  been 
constructed  according  to  them  may  themselves  be  considered 
monuments  and  proper  evidence  for  locating  the  true  lines. 

The  disturbance  of  ancient  lines  and  boundaries  is  discour- 
aged by  the  courts  as  tending  to  create  confusion  and  the  un- 
rest of  titles,  and  this  is  particularly  the  case  where,  as  often 
happens,  municipal  officers  attempt  arbitrary  re-surveys  for 
the  purpose  of  correcting  or  changing  the  lines  or  boundaries 
of  a  town.33 

33  See,  Racine  v.  Emerson,  85  Wis.  80. 


CHAPTEE  XIII. 


FORMAL  TARTS  OF  DEEDS. 


§  172. 

Operative   parts   of  a  deed. 

§  186. 

Description — Construction. 

173. 

Names  of  the  parties. 

187. 

Special   recitals. 

174. 

Grantors. 

188. 

The  habendum. 

175. 

Grantees. 

1S9. 

Exceptions      and      reserva- 

17(5. 

Nature    of   the   instrument. 

tions. 

177. 

Date   of   instrument. 

190. 

Conditions  and  limitations, 

178. 

Registration. 

191. 

Covenants. 

179. 

Consideration. 

192. 

Execution. 

180. 

Effect  of  consideration. 

193. 

The   signature. 

181. 

Words  of  grant. 

194. 

The  seal. 

182. 

Words    of    inheritance    and 

195. 

Attestation. 

limitation. 

196. 

Acknowledgment. 

183. 

Description   of   property. 

197. 

Delivery. 

184. 

Description — Sufficiency. 

198. 

Ancient   deeds. 

185. 

Description — Identification. 

199. 

Stamps. 

§  172.  Operative  Parts  of  a  Deed.  In  making  an  ab- 
stract or  synopsis  of  a  deed  of  conveyance,  the  essential  fea- 
tures which  require  notice  on  the  part  of  the  examiner  are  as 

follows : 

The  names  of  the  parties,  grantor  and  grantee  respectively, 
with  full  descriptio  personce,  including  the  character  in  which 
they  act. 

The  nature  of  the  instrument. 

The  dates  respectively,  of  execution  and  registration,  to- 
gether with  the  volume  and  page  of  the  registry. 

The  consideration,  or  other  matter  of  inducement. 

The  operative  words  of  grant,  inheritance  and  limitation. 

The  description  of  the  land  or  property  conveyed. 

The  habendum,  whenever  it  assumes  to  limit  or  qualify  the 
grant. 

Reservations  and  exceptions  from  the  grant. 

Covenants  and  conditions. 

207 


20S  ABSTRACTS    CF    TITLE. 

Restrictive  clauses,  and  directions  respecting  the  uses  to 
which  the  land  shall  be  applied. 

Special  recitals. 

Execution  and  attestation. 

The  acknowledgment  and  certificate  of  conformity. 

A  number  of  the  foregoing  parts  must  appear  in  every  ab- 
stract, while  a  few  need  only  be  shown  when  they  become  ma- 
terial; the  question  of  materiality  to  be  decided  by  the  exam- 
iner from  the  circumstances  developed  in  each  particular  case. 
A  brief  review  of  the  foregoing  heads  will  be  made  in  the  suc- 
ceeding paragraphs  and  the  subjects  will  also  receive  further 
consideration  in  other  parts  of  the  work  treating  of  specific 
conveyances. 

§  173.  Names  of  the  Parties.  As  there  can  be  no  valid 
deed  without  grantors  to  give  1  and  grantees  capable  of  taking,2 
the  parties  to  the  conveyance  form  the  first  natural  inquiry. 
In  the  abstract  they  should  be  shown  with  the  same  certainty 
of  identity  as  in  the  original  instruments,  together  with  any 
imperfect  designation,  error  or  omission  appearing  on  the  face 
of  the  deed  or  deduced  inferentially  from  a  comparison  with 
other  instruments  in  the  chain.  Errors  or  omissions,  how- 
ever slight  or  trivial,  should  always  be  mentioned  in  such  a 
manner  as  to  bring  them  to  the  attention  of  any  person  who 
may  peruse  the  abstract,  and,  when  necessary,  such  mention 
may  be  supplemented  by  the  examiner's  private  note,  or  by 
references  to  other  instruments  shown  in  the  same  examina- 
tion. The  names  of  the  parties  should  form  the  caption  to 
the  synopsis,  and  are  usually  written  in  the  style  of  a  legal 
caption  or  entitlement  in  court  pleadings,  on  the  left  hand 
margin  of  the  sheet  and  united  by  a  bracket. 

§  171.  Grantors.  The  names  of  the  grantors  appear  sev- 
eral times  in  a  deed.  They  are  usually  inserted  among  the 
first  recitals  of  the  premises,  accompanied  with  a  description 
of  the  person  and  other  particulars  as  to  residence,  marriage, 
capacity,  etc.     Frequently  they  again  appear  in  the  covenant 

i  Whitaker  v.  Miller,  83  111.  381.  Mon.  (Ky.)  545;  Douthitt  V.  Stin- 
aett    r.    Garnett,    7    T.    B.  son,  63  Mo.  268. 


FORMAL  PARTS  OF  DEEDS.  209 

clause  and  finally  in  the  execution.  In  abstracting  a  deed  the 
names,  wherever  written,  should  be  carefully  compared  with 
each  other  and  variances  in  the  granting  or  covenanting  clauses 
as  well  as  in  the  execution  and  acknowledgment,  properly 
noted.  The  domestic  relations  of  either  or  any  of  the  grantors, 
if  stated,  should  always  be  given  with  the  same  particularity 
as  the  original. 

At  common  law  the  deed  of  a  married  woman  is  absolutely 
void,3  but  by  liberal  and  progressive  legislative  enactments,  this 
rigorous  and  seemingly  unjust  rule  has  been  practically  abro- 
gated. The  examiner  will  therefore  note  the  changes  of  the 
law  in  this  respect,  as  applied  in  his  own  State,  and  carefully 
observe  that  all  the  requirements  of  the  statute,  at  the  date  of 
the  deed,  have  been  substantially  complied  with,  as  a  married 
woman  can  only  be  divested  of  her  property  or  interest  in  land 
in  the  mode  which  the  Legislature  has  prescribed.4 

Though  it  is  the  universal  practice  of  conveyancers  to  insert 
after  the  names,  the  residence  and  not  infrequently  the  occupa- 
tion of  the  parties,  there  appears  no  good  reason  why  these 
matters  should  be  transferred  to  the  abstract.  The  question  of 
alienage  is  set  at  rest  in  most  of  the  States  by  special  legisla- 
tion, while  the  chain  of  conveyances  is  usually  sufficient  to 
prove  identity  without  referring  to  residence  or  occupation. 
Some  examiners  give  the  residence  of  parties  only  when  they 
reside  without  the  State,  as  an  aid  in  determining  their  identity 
in  the  search  for  judgments,  or  to  enable  counsel  to  further 
prosecute  inquiries  raised  by  the  abstract  and  not  answered 
therein.  The  matter  is  optional  with  the  examiner  and  may 
be  omitted  or  not  in  his  discretion.  Special  descriptions,  par- 
ticularly when  explanatory  of  the  capacity  in  which  the  parties 
act,5  should  be  given  verbatim.     This  direction  acquires  addi- 

3  Fowler  v.  Shearer.  7  Mass.  14;  5  As  heirs  at  law  of  a  deceased 
Lane  v.  Soulard,  15  111.   124.  person;    devisee   of  a   certain   testa- 

4  Mason  v.  Brock,  12  111.  273;  tor;  widow  of  a  former  grantor, 
Garret  v.  Moss,  22  111.  363;  Heaton  etc. 

v.  Fryberger,  38  Iowa,  185. 

14 


210  ABSTRACTS    OF    TITLE. 

tional  force  when  such  descriptions  indicate  representative  or 
official  character. 

§  175.  Grantees.  Most  of  the  foregoing  remarks  on 
grantors  apply  with  equal  force  to  grantees,  and  the  same  care 
should  be  observed  in  reciting  and  describing  them.  The 
names  of  the  grantees  are  found  in  the  operative  part  of  the 
premises,  and  occasionally  are  repeated  in  the  habendum, 
though  the  references  which  follow  are  usually  to  "  said  second 
parties."  Imperfect  designation,  errors  and  omissions  should 
be  treated,  so  far  as  may  be,  in  the  same  general  manner  as  in 
case  of  grantors,  though  these  circumstances  are  not  so  appar- 
ent when  applied  to  grantees,  and  usually  must  be  deduced  in- 
ferentially  or  by  comparison. 

It  is  essential  to  the  validity  of  a  conveyance  that  it  be  to 
a  grantee  capable  of  taking  and  of  proper  identification ;  hence, 
a  deed  to  one  who  had  died  prior  to  its  execution  6  or  to  a  person 
not  in  being,7  or  to  a  corporation  which  has  no  legal  existence,8 
would  be  a  nullity,  and  pass  no  title  to  any  one.9  The 
same  result  would  follow  from  a  deed  to  the  heirs 
of  a  living  person  named  therein  without  giving  the  names  of 
the  heirs.10  So,  too,  a  conveyance  to  Jno.  Smith  &  Co.  would, 
at  law,11  have  the  effect  to  vest  the  title  in  Jno.  Smith  alone,12 

6  Hunter  v.  Watson,   12  Cal.  363.  io  Hall      v.      Leonard.      1      Pick. 

7  Morris  v.  Candle,  178  111.  9;  (Mass.)  27;  Winslow  v.  Winslow, 
Heath  v.  Heath,  114  N.  C.  547;  52  Ind.  8.  In  a  similar  case  in 
Davis  V.  Hollingsworth,  113  Ga.  Tennessee,  however,  it  was  held  that 
210.  But  this,  of  course,  refers  the  word  "heirs"  should  not  be 
only  to  a  deed  conveying  a  present  taken  in  its  technical  signification, 
estate.  but   to    mean    "  children,"    and  that 

s  Douthitt  V.  Stinson,  63  Mo.  208.  the    deed    took   effect   as    a    present 

9  Douthitt  v.  Stinson,  63  Mo.  268 ;  grant.     See    Grimes    v.    Orrand,    2 

Hornbeck    v.    Westbrook,    9    Johns.  Heisk.   (Tenn.)   298. 
(N.  Y. )    73;  but  although  no  gran-  11  The  several  members  of  a  firm 

tee  be  named,  if  the  grant  be  made  can  not  be  regarded,  in  the  view  of 

for  a  specific  use,  a  trust  will  often  a  court  of  law,  as  holding  real  estate 

be  created  which  a  court  of  equity  as  tenants  in  common,  unless  it  be 

will  protect,  and,  if  necessary,  ap-  conveyed  to  them,  as  such,  by  name, 
point  a   trustee  and  compel   a   con-  12  Arthur  v.  Webster,  22  Mo.  378; 

veyance   to   him   of   the   legal   title.  Winter  v.  Stock,  29  Cal.  407;   Gos- 

Bailey  v.  Kilburn,   10  Met.    (Mass.)  sett  v.  Kent,   19  Ark.  607;   Barnett 

176.  v.  Lachman,  12  New  361. 


FOBMAL  PARTS  OF  DEEDS.  211 

a  firm  name  not  being  a  sufficient  naming  of  the  grantee;  yet 
it  seems  that  this  may  be  regarded  as  a  latent  ambiguity  which 
may  be  explained  by  parol,13  while  in  equity,  he  would  be 
treated  as  holding  the  legal  title  in  trust  for  the  partnership.  A 
conveyance  to  John  Smith  &  Son  would,  be  effective,  however, 
as  "  son  "  is  a  sufficient  word  of  purchase,  and,  similarly,  a 
deed  to  Smith  &  Jones  of  a  designated  place,  would  be  legally 
sufficient  to  pass  title  to  John  Smith  and  Thomas  Jones,  it  be- 
ing shown  that  they  were  engaged  in  business  as  partners  at 
the  place  named.14 

An  absolute  conveyance  from  husband  to  wife,  while  void, 
at  law,  will  generally  be  upheld  in  equity,  and  will  vest  the 
title  in  the  wife  as  against  the  heirs  of  the  husband.15 

A  deed  to  a  party  by  a  wrong  baptismal  or  Christian  name 
will  yet  vest  title  in  the  intended  grantee,16  extrinsic  evidence 
being  admissible  to  explain  mistakes  or  prove  identity,17  and  if 
upon  a  view  of  the  whole  instrument  the  grantee  is  pointed 
out,  the  grant  will  not  fail,  even  though  the  name  of  baptism 
be  not  given  at  all.ls 

When  two  persons  bear  the  same  name  any  designatory 
quality  mentioned  in  the  deed  should  be  shown,  as  "Jr.,"19 
"  2d,"  etc.,  and  for  the  purpose  of  more  certain  identification 
it  is  often  well  to  add  the  residence  of  the  parties  if  given.  If 
father  and  son  bear  the  same  name,  unless  explained,  the  grant 
will  be  taken  as  one  to  the  father.20 

13Murry  v.  Blackledge,  71  N.  C.  and  see  Seanlan  v.  Wright,  13  Pick. 

492.  (Mass.)    523. 

14  Menage  v.  Burke,  43  Minn.  io  The  word  "Jr."  forms  no  part 
211;  and  see,  Kelley  v.  Bourne,  15  of  the  name  of  the  person  to  whose 
Oreg.  476.  name   it    is    usually   affixed,    but    is 

15  Putnam  v.  Bicknell,  18  Wis.  merely  descriptive  of  the  person 
333;  Dale  v.  Lincoln,  62  111.  22;  intended,  and  is  usually  adopted  to 
Sherman  v.  Hogland,  54  Ind.  578.  designate  the  son  where  father  and 

ic  Staak    v.     Sigelkow,     12     Wis.  son   both   have   the   same   Christian 

234;  but  see  Crawford  v.  Spencer,  8  name  as  well  as  family  name.    Pad- 

Cush.    (Mass.)   418.  gett    v.    Lawrence,     10    Paige     (N. 

i7Peabody    r.    Brown,     10    Gray  Y.),170. 
(Mass.),  45.  2o  Stevens   V.    West,   6   Jones    (N. 

18  Newton  v.  McKay,  29  Mich.  1;  C),   49;    Padgett   v.    Lawrence,    10 

Paige    (N.  Y.),  170 


212  ABSTRACTS    OF    TITLE. 

~No  person  can  take  a  present  estate  under  a  deed  unless 
named  therein  as  a  party,  and  the  habendum  can  never  intro- 
duce one  who  is  a  stranger  to  the  premises  to  take  as  grantee,21 
though  he  may  take  by  way  of  remainder,  but  where  the  gran- 
tee's name  has  been  omitted  in  the  premises,  if  the  habendum 
be  to  him  by  name,  his  heirs,  etc.,  he  takes  as  a  party,  and  the 
defect  is  cured.22  Far  less  strictness  is  required  as  to  capacity, 
etc.,  in  grantees  than  is  observed  in  case  of  grantors,  and  few 
of  the  disabilities  which  encompass  the  latter  are  applicable 
to  the  former.  Coverture,  infancy,  lunacy,  etc.,  form  no  bar 
to  the  grant,  but  as  a  rule,  to  be  valid,  it  must  be  to  a  corpora- 
tion, or  to  some  certain  person  named,  who  can  take  by  force 
of  the  grant,  and  hold  in  his  own  right,  or  as  trustee.23 

§  176.  Nature  of  the  Instrument.  After  the  recital  of 
the  parties,  the  next  inquiry  of  importance  is  the  nature  of  the 
conveyance,  which  can  be  ascertained  only  from  a  general  sur- 
vey of  the  entire  instrument.  The  name  of  the  document 
should  be  written  on  the  right  hand  margin  of  the  sheet  in  the 
manner  hereafter  shown,  and  should  be  sufficiently  full  to  in- 
dicate its  true  purport.  The  name  of  the  particular  kind  of 
deed  has,  of  course,  no  legal  efficacy  or  value,  but  serves  as  a 
fitting  introduction  to  the  synopsis,  and  apprises  the  reader  at 
the  outset  of  its  import  and  character.  Where  the  deed  is  made 
with  general  warranty  it  is  described  in  the  abstract  as  a  "  War- 
ranty Deed."  This  will  be  a  sufficient  reference  to  the  cove- 
nant. So,  too,  if  the  instrument  is  a  quit  claim,  and  is  so 
described,  no  necessity  will  exist  for  setting  out  the  operative 
words  of  conveyance  or  other  recitals.  If  the  instrument  de- 
parts from  conventional  forms  it  may  be  described  simply 
as  a  "  Deed,"  and  so  much  of  the  special  matter  should  be 
given  as  will  enable  counsel  to  determine  its  specific  character 
and  operative  effect.  « 

§  177.      Date  of  Instrument.     The  date  of  the  execution 

21  Blair  v.  Osborne,  84  N.  C.  417;  22  Lawe  v.  Hyde,   39  Wis.   346. 

Hornbeck    V.    Westbrook,    9    Johns.  23  Jackson  v.  Cary,  8  Johns.  385 ; 

73.  Newton  v.  McKay,  29  Mich.  1. 


FOEMAX  PAKTS  OF  DEEDS.  213 

of  the  deed  should  follow  next  in  order,  and  may  consist  simply 
of  a  line  embodying  the  fact,  as, 

Dated  July  10,  1882, 

or,  if  without  date,  a  statement  to  that  effect.  The  date  is 
no  part  of  the  substance  of  a  deed,24  nor  is  it  essential  to  its 
validity,25  the  conveyance  taking  effect  only  from  its  delivery,20 
but  the  date  may  become  important  in  determining  questions  of 
priority,27  or  in  ascertaining  whether  all  the  statutory  require- 
ments at  the  time  of  the  execution  of  the  deed  have  been  com- 
plied with.  The  date  of  a  deed,  in  the  absence  of  other  proof, 
is  presumed  to  be  the  true  date  of  its  execution,28  as  well  as  de- 
livery,29 and  is  the  time  from  which  title  in  the  grantee  should, 
in  most  cases,  be  computed.30 

As  deeds  are  now  drawn,  the  date  usually  forms  the  initial 
recital  of  the  premises,  though  it  may  frequently  be  found  in 
the  testimonium  clause,  and  in  case  of  discrepancy  the  latter 
should,  it  seems,  be  taken  as  the  true  date.31  Though  the  ex- 
pressed date  of  a  deed  is  immaterial  to  its  operation  and  effect,32 
and  may  under  ordinary  circumstances  be  contradicted  or  ex- 
plained, yet  when  taken  in  connection  with  conditions  or  stipu- 
lations annexed  to  the  grant,  it  may  become  important  in  fix- 
ing the  time  for  the  performance  of  any  act  by  grantor  or 
grantee,  and  in  such  case  can  not  be  varied  by  parol.33  Should 
the  instrument  be  without  date,  the  date  of  acknowledgment 

2  4  Jackson     v.     Schoonmaker,     2  30  Breckenridge  v.   Todd,  61   Am. 

Johns.    230;    Meach    v.    Fowler,    14  Dec.  83. 

Ark.   29;   Costigan  v.  Gould,   5  De-  3 1  Morrison  v.  Caldwell,   5  T.   B. 

nio,   290.  Mon.       (Ky.)       436.     In      formally 

25  Jackson  v.  Bard,  4  Johns.  230 ;  drawn  deeds  where  the  date  is 
Blake  v.  Fish,  44  111.  302;  Thomp-  stated  in  the  premises  the  testimo- 
son  v.  Thompson,   9   Ind.   323.  nium    recital    is   usually    "the   day 

26  Thatcher  v.  St.  Andrew's  and  year  first  above  written  "  with- 
Chureh,  37  Mich.  2li4;   Whitaker  v.  out  specific  mention. 

Miller,  83  111.  3S1.  32  Harrison   V.    Trustees   of   Phil- 

27  See  title  "  delivery."  lips'  Academy2  12  Mass.  456. 
'28Darst    V.    Bates,    51    111.    439;  38  Joseph     v.     Biglow,     4     Cush, 

Smith   V.  Porter,  10  Gray,  66.  (Mass.)    82. 

20  Hardin  v.  Crate,  78  111.  553. 


214  ABSTRACTS    OF    TITLE. 

may  be  presumed  to  be  also  that  of  execution  and  delivery.34 

§  178.  Registration.  For  convenience,  the  particulars  of 
registration  should  follow  the  date,  though  many  examiners 
prefer  to  insert  them  at  the  conclusion  of  the  synopsis  as  a 
proper  logical  sequence.  On  the  perusal  of  the  abstract,  how- 
ever, these  facts  are  best  read  together,  and,  to  facilitate  the 
labors  of  counsel,  should  be  placed  as  first  indicated.  The  only 
material  facts  concerning  registration  are,  the  date  of  record 
and  the  volume  and  page  on  which  the  instrument  is  recorded, 
which  should  be  stated  briefly  and  concisely.  In  case  of  re- 
record,  the  date,  volume  and  page  of  the  former  record  may  be 
given  after  the  synopsis  as  a  supplemental  foot-note.  As  the 
general  subject  of  registration  has  already  been  quite  fully 
noticed,  but  little  need  be  further  said  at  this  place. 

The  date  of  record  is  important  in  passing  on  questions  of 
priority,  particularly  when  the  instrument  is  itself  without 
date,  and  it  acquires  an  additional  importance  in  those  States 
where,  by  statute,  it  must  be  recorded  within  a  specified  time 
to  secure  preference  over  other  conveyances  or  against  creditors. 

Whenever  practicable,  it  is  recommended  that  all  informa- 
tion be  taken  direct  from  the  records,  but  occasionally  it  will 
happen  that  through  the  tardiness  of  the  enrolling  officers,  deeds, 
and  other  instruments  are  not  actually  transcribed  until  long 
after  they  have  been  filed  for  record.  In  this  event  the  exam- 
iner, in  order  to  fully  cover  the  period  of  his  search,  must  have 
recourse  to  the  original  documents,  but  it  is  further  recom- 
mended that,  after  the  synopsis  of  all  such  documents,  the  exam- 
iner append  the  following: 

Note. —  The   particulars   of   the    foregoing    conveyance    taken 
from  the  original  instrument. 

§  179.  Consideration.  The  consideration  named  in  the 
deed  next  follows,  and  when  consisting  of  the  ordinary  acknowl- 

34  Gorman  v.  Stanton,  5  Mo.  App.    585. 


FORMAL  TARTS  OF  DEEDS.  215 

edgment  of  the  receipt  of  money,  may  be  expressed  in  a  simple 
statement  of  the  amount  mentioned;  as 

Consideration,  $1,000.00. 

The  consideration  recital,  under  the  current  of  modern  de- 
cisions, has  lost  its  former  importance  and  not  infrequently 
fails  to  denote  the  true  motive  of  the  conveyance.  When  only 
a  nominal  sum  is  inserted,  coupled  with  other  considerations 
not  of  a  pecuniar}7  nature,  as  "  love  and  affection,"  marriage, 
performance  of  specific  acts,  etc.,  the  recital  should  be  given  in 
full,  in  the  identical  language  of  the  instrument,  and  verified 
by  quotation  marks.  When  the  expressed  consideration  amounts 
to  a  condition  precedent  or  subsequent,  this  may  become  of 
primary  importance,  while  it  should  always  be  stated  with 
sufficient  clearness  to  enable  counsel  to  determine  whether  same 
is  sufficient  to  sustain  the  conveyance.  Should  the  instrument 
be  without  consideration,  this  fact  should  also  be  noted  in 
the  line, 

No  consideration   expressed. 

§  180.  Effect  of  Consideration.  Xo  consideration  was 
required  in  conveyances  under  the  common  law,  the  homage 
and  fealty  incident  thereto  being  deemed  sufficient,  but  became 
necessary  under  the  statute  of  uses.35  As  a  general  propo- 
sition, any  valuable  consideration,  acknowledged  or  proved,  is 
sufficient  to  sustain  a  conveyance  of  lands,36  and  the  acknowl- 
edgment in  the  deed  of  payment  thereof  is  so  far  conclusive 
of  the  fact  as  to  give  effect  to  the  conveyance.37  A  deed  exe- 
cuted by  the  party  in  whom  title  is  vested,  and  expressing  a 
valuable  consideration,  never  needs,   as  against  him  or  those 

35  At  the   present   time   the   only  Glared.     Meeker  r.  Meeker,  16  Conn, 

practical    operation    of    the    expres-  383;    Goodspeed   V.    Fuller,   4G    Me. 

sion  of  a  consideration  or  the  intro-  141;    Graves   v.    Graves,    29    N.    H. 

duct  ion  of  a  clause  reciting  a   con-  129. 

sideration,  is  to  prevent  a  resulting  36  Jackson  V.  Leek,  19  Wend.  339. 

trust  to  the  grantor  and  estop  him  37  Ochiltree  v.  McClurg,  7  W.  Va. 

from  denying  the  making  and  effect  232. 
of  the  deed  for  the  uses  therein  de- 


216 


ABSTEACTS    OF    TITLE. 


claiming  under  him,  or  as  against  a  stranger,  to  be  supported 
by  showing  what  other  reason,  in  addition  to  the  will  of  the 
party,  led  to  its  execution.38  Xor  is  it  essential  to  the  validity 
of  a  conveyance  that  the  consideration  should  be  expressed,39 
and  a  deed,  if  properly  drawn,  will  pass  the  title,  whatever  it 
may  be,  without  reference  to  the  consideration  paid.40  Where 
parties  contract  by  deed,  a  consideration  will  usually  be  im- 
plied from  the  seal,41  which  as  a  rule  imports  consideration,42 
and  it  has  been  held  that  an  instrument  in  form  a  conveyance 
and  duly  signed,  whether  under  seal  or  not,  imports  a  con- 
sideration,43 while  a  voluntary  conveyance,  without  any  con- 
sideration, either  good  or  valuable,  is  valid  and  binding  between 
the  parties  and  their  privies.44 

As  against  the  grantor,  and  those  in  privity  with  him,  the 
acknowledgment  in  the  deed  of  payment  of  the  purchase  price 
is  his  receipt  or  admission,  which  on  proof  of  the  deed  will  be 
considered  as  proved.45  Such  acknowledgment,  however,  is  not 
conclusive,  being  merely  by  way  of  recital,  and  though  it  af- 
fords prima  facie  evidence  of  the  fact,  yet,  like  any  other  receipt, 
it  may  be  inquired  into,46  and,  for  the  purpose  of  recovering  the 
consideration  the  grantor  may  still  show  that  it  was  never, 
in  fact,  paid,47  but  not  to  invalidate  or  defeat  the  operation  of 
the  deed.48 


38  Rockwell  v.  Brown,  54  N.  Y. 
210;  Merrill  v.  Burbank,  23  Me. 
538. 

39  Jackson  v.  Dillon,  2  Overt 
(Tenn.),  261;  Wood  v.  Beach,  7  Vt. 
522;  Boynton  v.  Rees,  8  Pick. 
(Mass.)    329. 

40  Fetrow  V.  Merriweather,  53  111. 
278;  Laberee  v.  Carleton,  53  Me. 
211. 

41  Ross  V.  Sadgbeer,  21  Wend. 
166;  Evans  V.  Edwards,  26  111.  279; 
Croker  v.  Gilbert,  9  Cush.  (Mass.) 
131. 

42  Hunt  v.  Johnson,  19  N.  Y. 
279;  Croft  v.  Bunster,  9  Wis.  503; 
Bush  v.  Stevens,  24  Wend.  (N.  Y.) 
256. 


43  Ruth  v.  King,  9  Kan.  17.  This 
in  the  absence  of  statutory  require- 
ments to  the  contrary. 

44  Fouby  v.  Fouby,  34  Ind.  433; 
Wallace  V.  Harris,  32  Mich.  380; 
Laberee  v.  Carleton,  53  Me.  211. 

45  Bayliss  v.  Williams,  6  Coldw. 
(Tenn.)  440. 

4G  Huebsch  V.  Scheel,  81  HI.  281 ; 
Parker  v.  Foy,  43  Miss.  260;  Webb 
v.  Peele,  7   Pick.    (Mass.)    247. 

47  Barter  v.  Greenleaf,  65  Me. 
405;  Paige  v.  Sherman,  6  Gray 
(Mass.),  511;  Grout  V.  Townsend, 
2  Hill    (N.  Y.)   554. 

48Bassett  v.  Bassett,  55  Me.  127; 
Newell  v  Newell,  14  Can.  206; 
Richardson  V.  Clow,  8  111.  App.  91. 


FORMAL  PAKTS  OF  DEEDS.  217 

As  against  the  creditors  of  the  grantor  such  recital  is  but 
hearsay,  and  no  evidence  of  the  fact  of  payment,49  but  no  one 
except  a  creditor  can  avail  himself  of  the  objection  that  the  deed 
was  given  without  consideration.50 

§  181.  Words  of  Grant.  The  operative  words  of  grant 
are  found  in  the  premises  and  usually  immediately  follow  the 
consideration  recitals,  in  which  order  they  should  also  appear 
in  the  abstract  whenever  it  may  be  desirable  to  set  them  forth 
fully.  It  is  a  familiar  rule  with  conveyancers,  that  to  vest  a 
title  to  land  the  deed  must  contain  apt  words  of  grant,  release 
or  conveyance,51  and,  so  faithfully  has  this  been  followed,  it  is 
not  uncommon  to  meet  with  deeds  containing  as  many  as  seven 
or  even  ten  operative  words  of  grant.  The  effect  of  these  words 
is  a  question  of  construction  to  be  governed  and  decided  by  the 
law  of  the  State  in  which  the  land  is  situate,52  and  no  general 
rule  can  be  formulated  for  the  guidance  of  the  practictioner 
the  laws  of  the  different  States  being  widely  divergent.  The 
words  of  grant  of  most  frequent  occurrence  are  "  grant,53  bar- 
gain and  sell."  In  many  of  the  States,  when  not  limited  by 
express  words,  they  are  construed  as  covenants,54  while  in  other 
States  such  a  conveyance,  without  more,  would  be  a  mere  quit- 
claim and  inoperative  to  convey  an  after-acquired  title,55  or 
warrant  that  conveyed.56  Where  the  deed  is  without  covenants, 
or  contains  only  special  or  limited  covenants,  the  words  of  grant 
should  be  set  forth  immediately  preceding  the  description. 
When  the  usual  covenants  of  seizin,  warranty,  etc.,  appear  in 
the  deed  they  are  immaterial,  and  may  be  omitted. 

49  Redfield  Mfg.  Co.  v.  Dysart,  alent  to  "  grant."  Lambert  v. 
62  Pa.  St.  62;  Rose  v.  Taunton,  119       Smith,  9  Or.  185. 

Mass.    99;     Houston    V.    Blackman,  54  Brodie    v.    Watkins,    31    Ark. 

66   Ala.   559.  319;    Hawk   v.   MeCullough,  21    111. 

50  Hatch  v.  Bates,  54  Me.  136.  220.     This    construction    is    usually 

51  Johnson  V.  Bantock,  38  111.  made  under  peculiar  statutory  pro- 
Ill;   Catlin  v.  Ware,  9  Mass.  218;  visions. 

Hammelman    V.    Mounto,     87     Ind.  55  Butcher  v.  Rogers,  60  Mo.  138; 

178;  Brown  v.  Manter,  21  N.  H.  528.  Nicholson   v.  Caress.  45  Ind.  479. 

52McGoon  v.  Scales,  9  Wall.  23;  56  Taggart  v.  Risley,  4  Oreg.  235. 

Clark  v.  Graham,  6  Wheat.   577.  The    word     "give"     was     formerly 

53  The  word   "  convey "   is   equiv-  held,     in    the     absence     of    express 


218  ABSTRACTS    OF    TITLE. 

Technical  words  of  grant  possess  little  of  their  former  effi- 
cacy, though  it  is  still  true  that  to  constitute  a  conveyance  there 
must  be  sufficient  words  showing  an  intention  to  grant  an  es- 
tate,57 yet  every  part  of  the  instrument  may  be  resorted  to  for 
the  purpose  of  ascertaining  its  true  meaning  and  the  intention 
of  the  parties,58  and,  generally,  any  writing  that  sufficiently 
identifies  the  parties,  describes  the  land,  acknowledges  a  sale 
of  vendor's  rights  for  a  valuable  consideration,  and  is  signed, 
sealed  and  delivered,  is  a  good  deed  of  bargain  and  sale,59  and, 
if  complete  in  other  respects,  has  been  held  to  constitute  a  valid 
conveyance  even  though  all  words  of  grant  are  omitted.60 

§  182.  Words  of  Inheritance  and  Limitation.  Closely 
allied  to  the  foregoing  are  the  words  of  inheritance  and  limita- 
tion, once  of  the  very  essence  of  the  deed,61  but  now,  by  reason 
of  sweeping  statutory  changes,  comparatively  without  value  or 
legal  effect.  Though  invariably  inserted  by  the  conveyancer, 
words  of  inheritance  are  no  longer  necessary  to  create  or  convey 
a  fee,  and,  as  a  rule,  every  grant  of  lands  will  pass  all  the  es- 
tate or  interest  of  the  grantor,  unless  a  different  interest  shall 
appear  by  express  terms  or  necessary  implication,62  the  ques- 
tion of  the  estate  transferred  being  determined  rather  by  the 
end  sought  to  be  attained  by  the  grantor,  than  by  the  language 
employed.63  The  usual  and  ordinary  words  for  conveying  an 
estate  in  fee  simple  are  "  heirs,"  or  "  heirs  and  assigns  forever." 

The  rule  in  Shelly's  case,  with  its  refinements  and  subtilties 

covenants,  to  constitute  a  warranty  criticised    in    subsequent    decisions 

during    the    life     of     the     grantor.  and   frequently  rejected. 

Dow  v.  Lewis,  4  Gray   (Mass.),  468.  61  Jackson  v.  Meyers,  3  John.  388. 

57McKinney    v.    Settles,    31    Mo.  62  Merritt  v.  Disney,  48  Md.  344; 

541;    Brewton   v.    Watson,    67    Ala.  Beecher   v.    Hicks,    7    Lea    (Tenn.) 

121;    Brown   V.    Manter,    21    N.    H.  207;    Eiseley    V.    Spooner,    23    Neb. 

528.  470. 

58  Saunders  v.  Hanes,  44  N.  Y.  63  Hawkins  v.  Champion,  36  Md. 
353;  Callins  v.  Lavalle,  44  Vt.  230;  83;  Kirk  v.  Burkholtz,  3  Tenn.  Ch. 
American  Emigrant  Co.  v.  Clark,  425;  Lehndorf  v.  Cope,  122  111.  317. 
62  Iowa,   182.  This    is    now    a    general    statutory 

59  Chiles  v.  Conley's  Heirs,  2  rule.  In  a  few  States,  however,  the 
Dana   (Ky.),  21.  common-law    rule   still   obtains   and 

60  Bridge  v.  Wellington,  1  Mass.  words  of  inheritance  are  necessary 
219.     This   case    has    been    severely  to  pass  a  fee. 


FORMAL  PARTS  OF  DEEDS.  219 

is  not  recognized  in  some  States,  and  has  but  a  partial  effect 
in  others,  although  its  influence  is  still  manifest  in  nearly 
every  State.  As  a  wide  difference  of  interpretation  is  dis- 
played in  the  decided  cases,  it  is  difficult  to  prescribe  a  defini- 
tion of  the  rule  that  shall  be  sufficiently  certain.  Generally,  if 
an  estate  of  freehold  be  limited  to  the  ancestor  for  life,  and 
the  inheritance  to  his  heirs,  either  mediately  or  immediately, 
the  first  taker  takes  the  whole  estate;  if  it  be  limited  to  the 
heirs  of  his  body,  he  takes  a  fee  tail ;  if  to  his  heirs  generally, 
a  fee  simple.  The  words  "  heirs  "  or  "  heirs  of  the  body  "  in 
such  case,  are  words  of  limitation  and  not  of  purchase.64  The 
rule  in  Shelly's  case  is,  however,  at  most  a  technical  rule  of 
construction,  and  must,  as  a  general  proposition,  give  way  to 
the  clear  intent  of  the  donor  when  that  intention  can  be  ascer- 
tained from  the  instrument  in  which  the  words  supposed  to 
be  of  limitation  are  used.65 

Whenever  the  words  of  inheritance  depart  from  the  usual 
form  for  granting  a  fee,  and  seek  to  create  a  vested  or  con- 
tingent remainder  in  some  person  other  than  the  grantee  named, 
the  only  safe  method  for  the  examiner  is  to  set  forth  the  grant- 
ing clause  verbatim,  and  as  a  further  precaution  the  habendum 
may  also  be  shown.  To  create  an  estate  tail  or  remainder,  there 
must  be  the  use  of  technical  words  designating  a  class  of  heirs 
to  take  in  succession,  or  language  disclosing  a  clear  intent  to 
that  effect.66  The  word  "  children,"  though  frequently  used,  is 
usually  a  word  of  purchase,  requiring  strong  language  to  change 
it  into  a  word  of  limitation.  In  the  preparation  of  abstracts 
these  questions  are  too  frequently  lost  sight  of  by  the  examiner, 
who  fails  to  give  to  them  and  other  seemingly  minor  details, 
the  attention  their  importance  deserves. 

64  Butler  v.  Huestis,  68  111.  594;  first  grantee  takes  an  estate  for  life 

consult   Foster    v.    Shreve,    6    Bush  while  the  remainder  passes  in  fee  to 

(Ky.),  519;  Bradford  v.  Howell.  42  the    second    taker.     See,    Butler    v. 

Ala.  422;  Forrest  v.  Jackson,  56  N.  Huestis,  6S  111.  594. 
H.  357;  Smith  v.  Block,  29  Ohio  St.  65  Belslay  v.  Engel,   107   III.   182. 

488;   King  v.  Rea,  56   Ind.   1.     En-  66  Middleton   V.    Smith,    1    Coldw. 

tails,    when    permitted,    are   limited  (Tenn. )   144. 
to  the  first  degree  only,  that  is,  the 


220  ABSTRACTS    OF    TITLE. 

§  183.  Description  of  Property.  After  the  parties  to 
the  conveyance,  the  description  of  the  thing  or  subject-matter 
conveyed  is  the  great  essential,67  but  for  convenience,  and  fol- 
lowing the  orderly  parts  of  the  deed,  it  should  appear  immedi- 
ately after  the  words  of  conveyance.  In  abstracting  a  deed  it 
is  customary  to  condense  the  introductory  sentences  of  the  de- 
scription, which  allude  generally  to  the  situs  of  the  land  in  a 
given  county  and  State,  but  from  this  point,  or  after  the  words 
"'  to  wit,"  the  entire  description,  as  found  in  the  deed,  should 
be  set  forth  verbatim.  It  is  the  custom  also,  of  many  examin- 
ers, to  refer  for  descriptions  to  the  caption  of  the  abstract,  or 
to  other  instruments  in  the  chain  containing  the  same  or  sub- 
stantially the  same  description ;  a  practice  as  slovenly  as  it  is 
dangerous  and  one  strongly  to  be  reprehended.  Both  in  pre- 
paring the  abstract  and  in  passing  upon  the  title,  the  descrip- 
tion should  in  every  case  be  compared  with  the  caption,  and 
any  deviation  therefrom,  either  in  form  or  substance,  carefully 
noted. 

§  184.  Description  —  Sufficiency.  Every  deed  of  con- 
veyance, in  order  to  transfer  title,  must,  either  in  terms  or  by 
reference  or  other  designation,  give  such  description  of  the  sub- 
ject-matter intended  to  be  conveyed  as  will  be  sufficient  to  iden- 
tify the  same  with  reasonable  certainty.68  If  the  description 
is  too  indefinite  to  convey  anything,  or  too  vague  to  permit 
of  location,  then  the  deed  lacks  one  of  the  essential  elements  of 
a  conveyance.69  It  is  not  essential,  however,  that  the  deed 
should  on  its  face  ascertain  the  limits  or  quantity  of  the  par- 
ticular tract  conveyed.  It  will  be  sufficient  if  it  refers  to  cer- 
tain known  objects  or  things,  and  provides  definite  means  by 
which  the  land  may  be  readily  ascertained  and  known ;  70  where 
words  of  general  description  only  are  used,  oral  evidence  may 
be  resorted  to  for  the  purpose  of  ascertaining  the  particular 

67  Whitaker  v.  Miller,  83  111.  381.  C9  Barker  v.   Ry.   Co.,    125   N".   C. 

0  8  Berry  v.  Derwart,   55  Md.  66;  596. 

Long    v.     Wagoner,     47    Mo.     178;  70  Coats    v.    Taft,    12    Wis.    388; 

Barker  v.  By.  Co.,  125  N.  C.  596.  Dwight   v.    Packard,   49   Mich.    614. 


FORMAL  PAHTS  OF  DEEDS.  221 

subject-matter  to  which  they  apply.71  Any  description  by 
which  the  identity  of  the  property  intended  to  be  conveyed  is 
established,  will  be  sufficient,72  and  a  description  not  sufficiently 
certain  in  itself  may  be  made  so  by  reference  to  other  deeds 
in  which  it  is  sufficient.73 

§  185.  Description  —  Identification.  Defects  of  de- 
scription are  sometimes  cured  by  the  acts  of  the  parties  after 
the  conveyance  has  been  made.  As,  where  the  land  intended 
to  be  conveyed  is  not  identified  in  the  deed  the  parties  may  aft- 
erward survey  or  stake  out  a  tract,  and,  if  the  grantee  takes 
possession  of  such  tract,  this,  it  is  said,  ascertains  the  grant  and 
gives  effect  to  the  deed.74  But  such  a  proceeding,  as  a  rule, 
can  only  be  shown  by  matter  in  pais,  and  hence  does  not  affect 
the  conclusions  of  the  examiner  deduced  from  an  inspection 
of  the  record.  Unless  the  parties  have  recorded  the  survey 
or  minutes  of  location  the  examiner  is  under  no  duty  to  note 
the  fact,  even  though  he  may  be  cognizant  of  it,  and  the  opinion 
of  counsel  should  conform  to  the  facts  of  record  only.  If  parties 
desire  to  fix  and  perpetuate  their  rights  in  a  specific  parcel  of 
land  recourse  should  be  had  to  the  courts  or  to  the  public  records. 

§186.  Description  —  Construction.  It  is  a  rule  of  con- 
struction as  to  the  description  of  the  land  found  in  the  premises 
of  a  deed,  that  the  least  certain  and  material  parts  must  give 
way  to  the  more  certain  and  material.  Quantity  is  never  al- 
lowed to  control  courses  and  distances,75  and  courses  and  dis- 
tances must  yield  to  fixed  monuments  and  natural  objects  also 
referred  to  therein.76     But  where  the  monuments,  if  once  ex- 

"l  Coleman    v.    Improvement    Co.,  of  land  of  which   the  grantee   took 

94  N.  Y.  229.  possession  with  the  consent  of   the 

72  Smith  v.  Crawford,  81  111.  296;  grantor.  Simpson  v.  Blaisdell,  85 
Allen  V.  Bates,  6  Pick.  460.  Me.   199;   and   see,  Herrick  v.  Mor- 

73  Russell   v.  Brown,  41   111.   184;  rill,  37  Minn.  250. 

Credle    v.   Hays,   88  N.   C.   321.  75  Bishop  v.  Morgan,  82  111.  352 ; 

74  Thus,  where  a  deed  was  made  Saunders  v.  Schmaelzle,  49  Cal.  59. 
for  "one-half  acre  of  land  near  the  7G  Dupont  v.  Davis,  30  Wis.  170; 
wharf,"  describing  the  wharf,  it  was  Sanders  v.  Eldridge,  46  Iowa,  34; 
held  that  such  deed  was  not  void  Cunningham  V.  Curtis,  57  N.  H. 
for  uncertainty  if  the  parties,  after  157. 

the  conveyance,  marked  out  a  parcel 


222  ABSTRACTS    OF    TITLE. 

isting,  are  gone,  and  the  place  where  they  originally  stood  can 
not  be  ascertained,  the  courses  and  distances,  when  explicit, 
must  govern ;  77  and  where  the  boundaries  are  doubtful,  quan- 
tity often  becomes  a  controlling  consideration.78  ~Nor  will  the 
rule  that  monuments,  natural  or  artificial,  rather  than  courses 
and  distances,  control  in  the  construction  of  a  conveyance,  be 
enforced  when  the  instrument  would  thereby  be  defeated, 
and  when  the  rejection  of  a  call  for  a  monument  would 
reconcile  other  parts  of  the  description  and  leave  enough  to 
identify  the  land.79  Where  a  deed  calls  for  a  natural  object 
and  the  line  gives  out  before  reaching  it,  the  line  must  be  ex- 
tended to  the  natural  object,  and  the  distance  disregarded;80 
but  where  no  monuments  are  referred  to  and  none  are  intended 
to  be  afterward  designated,  the  distance  stated  in  the  grant 
must  govern  the  location.81  An  erroneous  description  of  land 
by  numbers  will  not  control  other  descriptive  particulars  which 
indicate  the  land  with  certainty.82 

Where  lines  are  run  to  fix  the  boundaries  of  a  tract,  with  spe- 
cial reference  to  the  points  of  the  compass,  they  will  generally 
be  construed  according  to  their  technical  significance.  Thus, 
a  line  running  "  northerly  "  will  be  construed  to  mean  due 
north,  and  so  of  the  other  cardinal  points.  These  terms  may 
be  controlled  or  qualified  by  other  words  of  description  used  in 
connection,  but  in  case  there  is  nothing  to  suggest  a  different 
construction  they  must  be  given  their  technical  meaning.83 

Where,  as  is  often  the  case,  the  conveyancer,  from  an  over 
anxiety  to  identify  the  property,  makes  two  descriptions,  the 
one,  as  it  were,  superadded  to  the  other,  the  one  description 
being  complete  and  sufficient  in  itself,  the  other  incorrect,  the 
incorrect  description,  or  feature,  or  circumstance,  may  be  re- 

77  Drew  v.  Smith,  46  N.  Y.  204;  si  Negbauer   V.    Smith,    44    N.   J. 

Clark   V.    Wethy,    19    Wend.    320.  L.   G72. 

7S  Winans  V.  Cheny,  55  Cal.  567.  82  Bradshaw  v.  Bradbury,  64  Mo. 

79  White  V.  Luning,  93  U.  S.  (3  334 ;  Montgomery  v.  Johnson,  31 
Otto)    515.  Ark.  62. 

80  Strickland  v.  Draughan,  88  N.  83  Fratt  v.  Woodward,  32  Cal. 
C.   315.  220. 


FORMAL  PARTS  OF  DEEDS.  223 

jectcd  as  surplusage,  and  the  complete  and  correct  description 
allowed  to  stand  alone.84 

It  must  be  remembered,  however,  that  notwithstanding  the 
utmost  liberality  is  allowed  in  the  construction  of  descriptions, 
so  as,  if  possible,  to  effectuate  the  intention  of  the  parties,  noth- 
ing passes  by  a  deed  except  what  is  described  in  it,  whatever 
the  intention  of  the  parties  may  have  been,  and  extrinsic  evi- 
dence is  inadmissible  to  make  the  deed  operate  upon  land  not 
embraced  in  the  descriptive  words.85 

§  187.  Special  Recitals.  Immediately  following  the  de- 
scription are  usually  found  the  special  recitals,  reservations, 
exceptions,  conditions,  etc.,  though  in  forms  specially  prepared 
they  may  also  be  found  in  that  part  of  the  deed  technically 
known  as  the  reddendum  and  to  insure  certainty  all  of  the  in- 
strument from  the  habendum  to  the  testimonium  clause  should 
be  carefully  read  by  the  examiner  when  compiling  the  abstract. 
All  special  matter,  including  recitals,  references,  exceptions, 
reservations,  conditions,  limitations,  etc.,  should  be  set  forth 
fully  in  an  orderly  manner  and,  whenever  practicable,  in  the 
identical  language  of  the  deed  and  verified  by  quotation  marks. 
When  not  so  treated,  or  where  slight  condensation  may  be  ad- 
vantageously employed,  the  matter  should  be  preceded  by  a 
parenthetical  statement,  to  indicate  that  what  follows  is  a  tran- 
scription and  not  an  observation  by  the  examiner,  thus : 

"  Said  grantor  (it  is  stated)  agrees  to,"  etc. 

Recitals  in  deeds  bind  the  parties  thereto,  and  those  claiming 
under  them,86  and  a  grantee  is  chargeable  with  notice  of  facts 
recited  in  a  deed  which  constitutes  a  necessary  part  of  his 
chain  of  title,87  but  such  recitals  are  not  evidence  against  one 

s*Kruse   v.   Wilson,    79   111.   233;  8G  Fisk   v.    Flores,    43    Tex.  340; 

Myer  v.  Ladd,  26  111.  415;  Wade  V.  Lamar  v.  Turner,  48  Ga.  329. 

Deray,  50  Cal.  376 ;  Credle  V.  Hays,  87  Pringle  v.  Dunn,  37  Wis.  449 

88  N.  C.  321;   Bray  v.  Adams,   114  Acer    V.    Wescott,    46    N.    Y.  348 

Mo.  486.  Bryne    V.    Morehouse,    22    111.  603 

85  Coleman  v.  Improvement  Co.,  R.  R.  Co.  v.  Kennedy,  70  111.  350. 
94  N.  Y.   229. 


224  ABSTRACTS    OF    TITLE. 

who    holds    under    a    title    emanating    from    an    independent 
source.88 

§  188.  The  Habendum.  It  is  rarely  that  the  attention  of 
either  examiner  or  counsel  is  called  to  the  habendum  of  a  deed, 
which,  unless  declaring  a  trust,  or  defining  the  limitation  of  an 
estate,  may  be  passed  without  notice  in  the  abstract.  Though 
formerly,  like  many  other  technical  features,  of  great  im- 
portance, it  has  now  degenerated  into  a  mere  form,89  and  in  the 
statutory  conveyances  in  use  in  many  of  the  States  is  entirely 
omitted.  In  general  the  habendum  refers  to  the  premises  and 
declares  what  estate  the  grantee  shall  hold.  It  may  sometimes 
enlarge  or  diminish  the  grant,  when  showing  a  clear  intention 
so  to  do,90  but  can  not  perform  the  office  of  divesting  the  estate 
already  vested  by  the  premises,  and  is  void  if  repugnant 
thereto.91  Where  the  deed  purports  to  create  a  vested  or  con- 
tingent remainder,  or  conveys  property  in  trust,  the  habendum 
often  becomes  important,  and  where  no  estate  is  mentioned  in 
the  granting  clause  it  becomes  efficient  to  declare  the  intention 
and  rebut  any  implication  which  would  otherwise  arise  from 
the  omission. 

§  189.  Exceptions  and  Reservations.  Everything  that 
restrains,  qualifies,  reserves  or  subtracts  from  the  grant  or  thing 
granted,  should  be  shown  on  the  abstract  with  minuteness  of 
detail,  and  to  that  end  it  is  desirable  that  everything  in  the  na- 
ture of  an  exception  or  reservation  be  copied  verbatim. 
Both  a  reservation  and  an  exception  must  be  a  part,  or  arise 
out  of  that  which  is  granted  in  the  deed.  The  difference  is 
that  an  exception  is  something  taken  back  or  out  of  the  estate 
then  existing  and  clearly  granted,  while  a  reservation  is  some- 
thing issuing  out  of  what  is  granted.92  Thus,  an  exception  is 
always  a  part  of  the  thing  granted,  and  of  a  thing  in  being.93 

ss  Lamar  v.  Turner,  48  Ga.  329;  Halifax  V.  Stark,  34  Vt.  243;   Kob- 

Kerfoot  v.  Cronin,  105  111.  609.  inson   V.  Payne.  58  Miss.   G90. 

89  4  Kent  Com.  468;  4  Blk.  Com.  92  Adams  v.  Morse.  51  Me.  497; 
298.  Kister  v.  Reeser,  98  Pa.   St.   1. 

90  Corbin  V.  Healy,  20  Pick.  514.  93  Winthrop  V.  Fairbanks,  41  Me. 

91  Riggin    v.    Love,    72    111.    553;  307. 


FORMAL  PARTS  OF  DEEDS.  225 

A  reservation  is  of  a  thing  not  in  being,  but  is  newly  created  out 
of  the  land  or  property  demised.94 

The  usual  operative  words  to  create  an  exception  are,  "  sav- 
ing and  excepting,"  etc.,  but  the  terms  indicative  of  either  method 
are  often  used  indiscriminately  and  frequently  in  conjunction, 
as  "  excepting  and  reserving,"  etc.,  and  the  difference  between 
the  two  is  so  obscure  in  many  cases  that  it  has  not  been  ob- 
served.95 Although  there  is  a  technical  distinction  between 
the  terms,  yet  where  "  reserving  "  is  used  with  evident  intent 
to  create  an  exception,  effect  should  be  given  in  that  sense.96 
A  reservation  in  a  deed  will  never  operate  to  give  title  to  a 
stranger,  though  it  may,  when  intended  by  the  parties  as  an  ex- 
ception, afford  notice  to  the  grantee  of  adverse  claims  in  or  to 
the  thing  excepted  or  reserved.97  A  restriction  may  take  effect 
as  a  reservation,  if  it  does  not  necessarily  deprive  the  grantee 
of  the  essential  benefits  of  the  grant.98 

The  same  certainty  of  description  is  required  in  an  excep- 
tion out  of  a  grant  as  in  the  grant  itself,  as  where  a  deed  ex- 
cepts out  of  the  conveyance  one  acre  of  land,  and  there  is  noth- 
ing in  the  exception  to  locate  it  upon  any  particular  part  of  the 
tract,  the  exception  is  void  for  uncertainty,  and  the  grantee 
takes  the  entire  tract.99  Reservations  and  exceptions,  when 
expressed  in  a  doubtful  manner,  are  to  be  construed  most 
strongly  against  the  grantor,1  yet  if  the  intention  of  the  parties 
can  be  fairly  ascertained  from  the  instrument,  such  intention 
will  govern  in  its  construction.2 

§  190.  Conditions  and  Restrictions.  Analogous  to  the 
exceptions  and  reservations  of  a  deed  are  the  conditions  quali- 
fying the  grant  and  the  limitations  or  restrictions  of  its  use, 
both  of  which  demand  the  closest  attention  on  the  part  of  ex- 

94  Gay    v.    Walker,    36    Me.     54.  9S  Gay   v.    Walker,   3G   Me.    54. 
See,   Warvelle2   Real   Property,   256.           99  Mooney   v .    Cooledge,    30    Ark. 

95  Winthrop  V.  Fairbanks,  41  Me.       640. 

307.  l  Wyman   V.   Farrar,   35   Me.   64 ; 

96  Sloan  V.  Lawrence  Furnace  Duryea  v.  New  York,  62  N.  Y.  502. 
( '<)..  29  Ohio  St.  568.  2  Wiley  v.  Sirdorus,  41  Iowa,  224. 

97  West   Point    Iron    Co.   v.   Pey- 
niert,  45  N.  Y.  703. 

15 


226  ABSTRACTS    OF    TITLE. 

aminer  and  counsel.  As  in  the  case  of  reservations,  the  con- 
ditional or  restrictive  clauses  should  be  copied  word  for  word, 
the  abstract  showing  them  to  be  literal  quotations.  Conditions 
frequently  partake  of  the  nature  of  the  consideration  for  the 
conveyance,  and  declare  its  true  motive,  and,  when  such  is  the 
case,  it  becomes  doubly  important  that  they  be  correctly  shown. 

Conditions  are  divided  into  precedent  and  subsequent,  the 
former  being  something  which  must  be  punctually  performed 
before  the  estate  can  vest,  and  deeds  containing  them  expressly 
declare  that  the  grant  is  upon  such  condition.  A  condition  sub- 
sequent indicates  something  to  be  performed  after  the  estate 
vests,  the  continuance  of  such  estate  depending  upon  its  per- 
formance. The  character  of  conditions,  precedent  or  subse- 
quent, depends  upon  the  intention  of  the  parties,  as  shown  by  a 
proper  construction  of  the  whole  instrument,  not  upon  the  pre- 
cise or  technical  words  used.3  A  deed  upon  condition  subse- 
quent conveys  the  fee  with  all  its  qualities  of  transmission. 
The  condition  has  no  effect  to  limit  the  title,  until  it  becomes 
operative  to  defeat  it.4 

The  law  does  not  favor  forfeitures,5  and  conditions  in  avoid- 
ance of  an  estate  are  strictly  construed ;  no  language  will  be 
construed  into  such  a  condition  contrary  to  the  manifest  intent 
of  the  parties,  nor  when  any  other  reasonable  construction  can 
be  given  to  it.6  Conditions  of  this  kind  will  not  bind  the  heirs 
or  assigns  unless  they  are  expressly  mentioned,7  nor  will  a  con- 
ditional grant  revert  on  breach,  there  being  no  clause  provid- 
ing for  forfeiture  or  re-entry,8  and  until  defeated  by  an  actual 
entry  made  for  the  purpose  of  claiming  a  forfeiture,  by  some 
one  having  the  right  so  to  do,  the  estate  continues  in  the  gran- 
tees.9 Conditional  grants,  though  sometimes  running  to  in- 
dividuals, are  more  frequently  found  in  dedicatory  conveyances, 

3  Eogan  V.  Walker,  1  Wis.  527 ;  7  Page  V.  Palmer,  48  N.  H.  385, 
Sheppard  v.   Thomas,   26  Ark.   617.  This   is  the  general   rule,   but   local 

4  Shattuck  V.  Hastings,  99  Mass.  statutes  may  qualify  or  vary  it. 
23.  8  Packard  v.  Ames,  82  Mass.  327. 

5Voris  V.   Renshaw,  49   111.   425;  9  Osgood   v.    Abbott,    58   Me.    73; 

Hoyt    v.   Kimball,  49  N.  H.   322.  Guild  v.  Richards,  82  Mass.  309. 

6  Wier  v.   Simmons,  55  Wis.  637. 


F0EMAE  PAETS  OF  DEEDS.  227 

or  in  deeds  to  religious,  charitable  or  educational  institutions. 

Restrictions  on  the  use  of  property  conveyed  are  of  more 
frequent  occurrence,  but,  unless  they  are  also  conditions  subse- 
quent, do  not  work  a  forfeiture  in  their  violation.  They  consist 
usually  of  building  regulations,  sanitary  measures  and  matters 
involving  the  good  morals  of  community,  as  prohibition  of  the 
sale  of  intoxicating  liquors  on  the  premises,  etc.  They  are  de- 
signed ordinarily  to  prevent  such  use  of  the  premises  by  the 
grantee  and  those  claiming  under  him,  as  might  tend  to  dimin- 
ish the  value  of  the  residue  of  the  land  belonging  to  the  grantor 
or  impair  its  eligibility  for  particular  purposes,  and  that  such 
a  design  is  a  legitimate  one,  and  may  be  carried  out  consistently 
with  the  rules  of  law  by  reasonable  and  proper  restrictions,  can 
not  be  doubted.  Every  owner  of  property  has  the  right  to  so 
deal  with  it,  as  to  restrain  its  use  by  his  grantee  within  such 
limits  as  to  prevent  its  appropriation  to  purposes  which  will 
impair  the  value  or  diminish  the  pleasure  of  the  enjoyment  of 
the  land  which  he  retains.10  Such  restrictions  are  recognized 
and  upheld  by  the  courts,  and  violations  thereof  will  be  re- 
strained by  injunction.11 

A  condition,  whether  precedent  or  subsequent,  is  not  bind- 

10  The    only    restriction    on    this  11     Gray     (Mass.),    359;     Atlantic 

right   is  that   it  shall   be   exercised  Dock  Co.  V.  Leavitt,  54  N.   Y.   35; 

reasonably,  with  due  regard  to  pub-  Watrous    V.    Allen,    57    Mich.    362; 

lie  policy,  and  without  creating  any  and  see  Warvelle  on  Vendors,  §  438 

unlawful    restraint    of    trade.     Nor  et  seq. 

does  there  seem  to  be  any  doubt  llDorr  v.  Harrahan,  101  Mass. 
that  in  whatever  language  such  a  531;  Cowell  V.  Col.  Springs  Co. 
restraint  is  couched,  whether  in  the  100  U.  S.  55;  Clark  v.  Martin,  49 
technical  form  of  a  condition  or  Pa.  St.  289.  Where  restrictions 
covenant,  or  of  a  reservation  or  upon  building  are  inserted  in  a  deed 
exception,  or  merely  by  words  as  a  part  of  a  scheme  for  a  plan  of 
which  give  to  the  acceptance  of  the  improvement,  such  restrictions,  as 
deed  by  the  grantee  the  force  and  a  rule,  though  spoken  of  as  con- 
effect  of  a  parol  agreement;  it  is  ditions,  are  not  to  be  deemed  tech- 
binding  as  between  the  immediate  nical  conditions  whose  breach  in- 
parties  thereto,  and  may  be  en-  volves  forfeiture.  Ayling  V.  Kra- 
forced  by  or  against  their  respect-  mer,  133  Mass.  12. 
ive   assigns.     Whitney    v.    Ry.    Co., 


228  ABSTRACTS    OF    TITLE. 

ing  after  the  party  imposing  it  has  rendered  its  performance  im- 
possible or  unnecessary.12 

§  191.  Covenants.  The  covenants  of  a  deed  add  nothing 
to  its  efficiency  as  a  means  of  conveyance,  and  a  quitclaim  deed 
will  as  effectually  pass  the  title  and  covenants  running  with  the 
land  as  a  deed  of  bargain  and  sale,  if  no  words  restrict  its  mean- 
ing.13 The  covenant  clause  usually  immediately  precedes  the 
testimonium,  and  when  consisting  only  of  the  conventional  as- 
surance of  seizin,  right  to  convey,  freedom  from  incumbrance, 
quiet  enjoyment  and  warranty,  may  be  passed  with  simple  no- 
tice, or  if  the  deed  is  in  other  respects  regular,  and  is  described 
in  the  abstract  as  a  "  Warranty  Deed,"  there  seems  no  good 
reason  why  any  further  mention  should  be  made,  particularly 
if  the  client  knows  such  to  be  the  examiner's  custom.  There 
is  no  uniform  rule  regarding  their  insertion,  and  usually  they 
are  omitted.  Special,  or  unusual  covenants,  or  such  as  seek  to 
limit  the  grantor's  liability,  should  be  noticed  at  such  length  as 
their  importance  seems  to  demand,  and  if  necessary  for  a  proper 
understanding,  should  be  literally  transcribed. 

Covenants  are  either  express  or  implied.  Implied  covenants 
must  be  consistent  with,  and  not  contrary  to,  the  express  cove- 
nants,14 and  where  a  deed  contains  both,  the  latter  qualifies 
and  restrains  the  former.15  Covenants  are  also  classified  as 
personal  and  real,  or  those  which  run  with  the  land,  though 
some  confusion  exists  as  to  the  division  between  them.16  Xo 
special  words  are  needed  to  raise  a  covenant,1"  and  whatever 
shows  the  intent  of  the  parties  to  bind  themselves  to  the  per- 
formance of  a  stipulation  may  be  deemed  a  covenant  without 
regard  to  the  form  of  expression.18 

The  ancient  common  law  warranty  has  been  superseded  by 

12  Jones  v.  R.  R.  Co.,  14  W.  Va.  15  Kent  v.  Welch,  7  Johns.  258;  ( 
514.                                                                   Sumner  v.  Williams,  8  Mass.  201. 

13  Morgan  v.  Clayton,  61  111.  35;  io  2   Bou.  Law  Diet.   327. 

Rowe  V.   Becker,  30   Ind.    154;   Pin-  l7Neweomb   V.    Presbrey,   8   Met. 

gree  V.  Watkins,  15  Vt.  479;  White  406. 

v.    Whitney,    3    Met.    81;    Hunt    v.  18  Taylor  v.   Preston,   79  Pa.   St. 

Amidon,  4  Hill,  345.  436. 

14  Gates  v.  Caldwell,  7  Mass.  68. 


FORMAL    I>AUTS    OS    LLEDS.  221) 

personal  covenants,  and  never  Lad  any  practical  existence  in 
this  country.19  The  weight  of  American  authority  holds  that 
the  covenants  of  seizin,  good  right  to  convey  and  freedom  from 
incumbrances,  are  in  presenti;  that  they  do  not  run  with  the 
land,  and  if  broken  at  all,  are  broken  at  the  instant  of  their 
creation.20  The  claim  for  damages  thereby  becomes  personal 
in  its  nature  to  the  grantee,  and  is  not  transferred  by  a  con- 
veyance to  a  subsequent  grantee.21  Several  of  the  States,  fol- 
lowing the  English  rule,  permit  an  action  by  a  remote  grantee 
in  his  own  name  where  the  substantial  breach  of  the  covenant 
occurs  after  the  assignment,  and  the  whole  actual  damages  are 
sustained  by  the  assignee.22  Where  privity  of  estate  exists  be- 
tween the  parties,  and  the  covenant  is  one  about  or  affecting 
the  land  granted,  and  tends  directly  and  necessarily  to  enhance 
its  value,  or  render  it  more  beneficial  to  those  by  whom  it  is 
owned,  the  covenant  is  said  to  be  incident  to  the  land,  and 
may  be  enforced  by  and  is  binding  upon,  those  in  whom  the 
title  subsequently  vests.23  It  is  a  general  principle  that  cove- 
nants which  run  with  the  land  pass  only  with  the  legal  title 
thereto.24  The  covenant  of  warranty  extends  only  to  the  right, 
title  and  interest  in  the  lands  bargained  and  sold  by  the  vendor. 
The  covenants  can  not  enlarge  the  premises.25 

Where  a  covenant  is  implied  from  statutory  words,  the  very 
words  of  the  statute  must  be  used  to  raise  it.26  In  a  convey- 
ance in  form  a  "  Warranty  Deed,"  but  omitting  any  of  the 
customary  covenants,  it  is  well  to  note  the  omission,  and  in 
such  cases,  where  by  statute  covenants  are  implied  from  specific 
words  of  grant,  the  operative  words  of  conveyance  as  found  in 
the  deed  should  be  inserted. 

19  Jones  V.  Franklyn,  30  Ark.  22  Eichard  t\  Bent,  50  111.  38; 
631.  Schofield  v.  Homestead  Co.,  32  Iowa, 

20  Tone    v.    Wilson,    81    111.    520;  317;  Cole  v.  Kimball,  52  Vt.  639. 
Fuller   v.   Jillett,   9    Biss.    (C.    Ct.)  23  Wooliscroft  v.  Norton,  15  Wis. 
296.  108;  Wheeler  v.  Schad,  7  Nev.  204. 

21  Salmon  v.  Vallejo,  41  Cal.  481 ;  24  Wright  v.  Sperry,  21  Wis.  331. 
Dale  v.  Shivery,  8  Kan.  276;  Pills-  25  Lamb  V.  Wakefield,  1  Sawyer, 
bury  v.  Mitchell,  5  Wis.   17;   Mois-  251. 

ton  v.  Hobbs,   2  Mass.  433 ;   Green-  2«  Vipond  v.  Hurlbut,  22  111.  226. 

by  v.  Kellog,  2  Johns.  2. 


230  ABSTRACTS    OF    TITLE. 

§  102.     Execution.     The  execution  of  a  deed  technically 

comprises  the  signing,  sealing  and  delivery  ~7  and  in  some 
States  the  attestation  of  witnesses  as  well,  but  the  attention  of 
examiner  and  counsel  need  only  be  directed  to  the  two  former, 
and,  where  required  by  law,  the  attestation.  The  laws  of  the 
various  States  on  the  subject  of  execution,  though  preserving 
a  general  harmony,  are  by  no  means  uniform  nor  have  they  al- 
ways been  the  same  during  the  governmental  existence.  The 
examiner  should  be  fully  posted  on  all  the  changes  of  the  law 
in  respect  to  the  execution  of  deeds  in  his  own  State,  and  care- 
fully observe  and  note  in  the  abstract  any  defects  or  errors,  in 
signatures,  seals  or  attestation,  and  any  non-compliance  with 
statutory  requirements.  Extra  vigilance  will  be  required  in 
the  cases  of  deeds  by  married  women,  conveyances  by  delegated 
authority  and  by  corporations. 

§  193.  The  Signature.  Sealing,  not  signing,  was  the 
sine  qua  non  to  the  validity  of  the  common  law  deed,  and  a 
signature  was  not  considered  necessary.28  Sealing  is  now  of 
little  moment,  save  as  a  technical  requirement,  while  in  several 
States  it  is  entirely  dispensed  with,  and  the  deed  derives  its  effi- 
cacy from  the  signature.  An  unsigned  deed,  though  duly  at- 
tested, acknowledged  and  delivered,  is  a  nullity.29 

27  Thorp  v.  Keokuk  Coal  Co.,  48  the  sign  of  the  cross.     By  the  stat- 
N.  Y.  253.  ute  of   29   Charles   II,   for   the   pre- 

28  Coke,  Lit.  L.  1,  C.  5,  §  40.  vention  of  frauds  and  perjuries,  all 
This  was  doubtless  occasioned  by  transfers  of  land  were  required  to 
reason  of  the  very  general  inability  be  put  in  writing  and  signed  by  the 
of  the  mass  of  the  people  to  read  parties  making  same,  and  this  stat- 
or  write;  see  1  Reeves'  Hist.  Eng.  ute  is  the  foundation  of  the  Anieri- 
Law,  184,  note.  Under  the  Saxon  can  laws  upon  the  subject.  In 
rule  it  would  seem  that  signing  was  .  Blaekstone's  time  signing  does  not 
in  general  use  provided  the  parties  appear  to  have  been  essential  to  va- 
were  able  to  write,  and  whether  lidity,  although  he  says  ( 1  Com. 
they  could  write  or  not  it  was  cus-  305)  :  "It  is  said  to  be  requisite 
tomary  to  affix  the  sign  of  the  that  the  party,  whose  deed  it  is, 
cross;  but  on  the  Norman  conquest  should  seal,  and  now  in  most  cases, 
waxen  seals,  usually  with  some  spe-  I  apprehend,  should  sign  it  also." 
cine  device,  were  introduced  and  29  Goodman  v.  Randell,  44  Conn, 
took  the  place  of  the  Saxon  method  325;  Miller  r.  Ruble,  107  Pa.  St. 
of   writing    the    name    and    making  395;   Hilton  V.  Asher,  103  Ky.   730. 


FORMAL  PARTS  OF  DEEDS.  231 

The  law  presumes  that  in  executing  instruments,  parties  use 
their  real  names,  and  does  not  presume  them  to  have  different 
names.  So,  where  the  record  of  a  deed  purporting  to  have 
been  signed  by  Harmon  S.  was  acknowledged  by  Hiram  S.,  it 
was  held  inadmissible  to  prove  a  conveyance  by  Hiram,30  as 
only  the  signer  can  acknowledge  as  grantor.  It  is  doubtful, 
however,  whether  this  can  be  received  as  the  accepted  doctrine, 
the  volume  of  authority  inclining  to  the  contrary,  and  generally 
if  the  grantor's  true  name  is  recited  in  the  body  of  the  deed  and 
he  also  acknowledges  it  by  his  true  name,  the  fact  that  he  signs 
it  by  a  wrong  name  does  not  invalidate  the  conveyance.31  All 
variances  of  this  nature,  being  of  the  essence  of  the  conveyance, 
require  full  notice.  A  deed  signed  with  a  mark,  if  otherwise 
regular,  may  be  treated  as  properly  executed,  and  such  is  also 
the  custom  of  examiners  where  the  signature  is  in  a  foreign  lan- 
guage. Where  an  instrument  is  found  with  a  signature  affixed 
to  it,  the  presumption  is,  that  the  party  signing  it  knew  its  con- 
tents, and  there  is  no  distinction  in  this  respect  between  those 
who  can  and  those  who  can  not  write.31  a 

§  194.  The  Seal.  In  most  of  the  States  the  formality  of 
a  seal  is  required  in  the  execution  of  deeds  for  the  conveyance 
of  land,  while  in  some  its  use  has  been  dispensed  with  by  statute. 
The  common  law  seal  has  been  defined  as  an  impression  upon 
wax  or  wafer  or  some  other  tenacious  substance  capable  of  be- 
ing impressed,32  but  as  the  record  would  fail  to  show  the  method 

It  would  seem  as  though  the  state-  Hackney,  10  Lea   (Term.),  194.    See 

ment  of  the   text  was   not   only   in  also    the    topic    "  Defective    Execu- 

consonance  with  law  but  with  rea-  tion,"  in  the  succeeding  chapter, 

son   as   well,    yet   late   decisions    in  30  Boothroyd   v.   Engle,   23   Mich, 

some  localities  would  indicate  that  19. 

a   deed   is   not   necessarily  void   be-  31  Middleton    v.    Findla,    25    Cal. 

cause  the  grantor's  name  is  not  sub-  76;  Tustin  v.  Faught,  23  Cal.  237; 

scribed  to  it,  provided  it  is  written  Zahnn  V.  Haller,  71  Ind.  136;  Houx 

in    his    own    handwriting,    and    so  v.  Batteen,  68  Mo.  84. 

placed  in  the  body  of  the  deed  as  3iaDoran  V.  Mullen,  78   111.  342. 

to  control  the  grant.     The  question  32  Warren  v.  Lynch,  5  Johns.   (N. 

then  becomes  one  of  intent,  and,  it  Y. )   239.     And  a  later  decision  held 

has    been   held,    may    be    considered  that  the  seal  of  a  corporation  or  of 

by  a  jury  in  connection  with  other  a   private   individual    impressed    di- 

circumstances.     See      Saunders      v.  rectly  upon  paper  without  the  use 


202  ABSTRACTS    OF    TITLE. 

of  scaling,  the  examiner  would  still  be  at  a  loss  to  know  if  the 
deed  had  been  properly  sealed,  were  this  rule  still  in  effect.  In 
a  majority  of  the  States  where  seals  are  still  required,  a  scrawl 
has,  by  statute,  the  force  of  a  seal,  whenever  it  appears  from 
the  body  of  the  instrument,  the  scrawl  itself,  or  the  place  where 
affixed,  that  such  scrawl  was  intended  for  a  seal.33  Where  a 
scrawl  is  allowed  for  a  seal,  the  word  "  seal "  at  the  end  of  the 
maker's  signature,  and  referred  to  in  the  testimonium  clause, 
creates  a  sealed  instrument ;  the  word  "  seal  "  is  equivalent  to 
a  scrawl.34  And,  generally,  an  instrument  will  be  treated  as 
sealed,  when  the  intent  to  affix  a  seal  is  clear.35  It  has  been 
held  that  where  the  record  was  made  at  a  time,  and  under  a 
law,  permitting  the  registration  of  only  sealed  instruments, 
and  the  instrument  was  in  form  a  warranty  deed,  the  conclu- 
sion attestation  and  certificate  of  acknowledgment,  all  speaking 
of  it  as  under  seal,  it  will  be  presumed  that  the  original  was 
sealed.  And  whether  or  not  it  was  the  legal  duty  of  the  re- 
corder to  indicate  upon  the  record  whether  the  instrument  was 
sealed,  his  omission  to  do  so  will  not  overcome  the  presump- 
tion.36 Usually,  if  the  instrument  is  otherwise  in  form,  it 
will  at  least  be  sufficient  to  convey  an  equitable  title,  and  there- 
fore, if  recorded,  will  affect  those  interested  with  constructive 
notice  of  its  contents  as  fully  as  if  sealed.37 

If  one  of  several  grantors  named  in  an  instrument  which 
purports  to  be  sealed  by  all  of  them,  neglects  to  affix  his  seal 
thereto,  in  the  absence  of  other  evidence  he  will  be  deemed  to 

of  wax  or  other  tenacious  substance  35  Burton    v.    LeRoy,    5    Sawyer, 

is   a   nullity,   although   holding   the  510;    McCarley    V.    Supervisors,    58 

contrary  as  to  seals   of  courts   and  Miss.   749 ;    Flowery  Mining   Co.   v. 

public  officers.     See  Farmers'  Bank  Bonanza  Co.,  16  Nev.  302. 

v.   Haight,   3   Hill    (N.   Y.),   493.  3G  Starkweather     v.     Martin,     28 

33  Hudson  v.  Poindexter,  42  Miss.  Mich.  471;  LeFranc  v.  Richmond, 
304;  Deininger  v.  McConnel,  41  111.  5  Sawyer    (C.  Ct.),  601. 

229.     This    is    a    general    statutory  37  Grandin  v.  Hermandez,  29  Hun 

rule.  (N.   Y.),   399.     Local   statutes   pre- 

34  Groner  v.  Smith,  49  Mo.  318;  scribing  requisites  for  registration 
Lewis   v.    Overby,    28   Gratt.    (Va.)  may  vary  this  rule. 

627. 


FOmiA-L    TARTS    OF    DEEDS.  233 

have  adopted  the  seal  of  some  one  of  the  other  signers,  and  will 
be  equally  bound  with  them.38 

In  compiling  the  abstract  it  is  unnecessary  to  refer  to  the 
execution,  or  any  part  thereof,  if  in  all  respects  regular  and 
in  conformity  to  law;  only  defects  or  omissions  require  no- 
tice, and  these  are  best  shown  by  a  literal  transcription. 

§  195.  Attestation.  Subscribing  witnesses  to  a  conveyance 
of  land  are  not  necessary  at  common  law,39  nor  by  statute  in 
many  of  the  States;  others  require  an  attestation  by  one  sub- 
scribing witness  only,  while  in  a  majority  it  is  necessary  that 
the  deed  be  executed  in  the  presence  of  two  witnesses,  who  shall 
subscribe  their  names  to  same  as  such.  As  the  matter  of  attes- 
tation is  purely  statutory  the  effect  of  omission  in  this  par- 
ticular is  to  be  decided  solely  by  the  application  of  local  law. 

The  usual  and  ordinary  words  of  attestation  are  "  signed, 
sealed  and  delivered  in  our  presence,"  but  the  late  statutory 
forms  of  conveyance  have  somewhat  abbreviated  this  ancient 
form  of  expression,  and  the  words  "  in  our  presence,"  imme- 
diately following  the  testimonium  clause,  and  followed  by  the 
signatures  of  witnesses,  is  a  good  and  sufficient  attestation. 
When  required  at  all,  attestation  is  usually  a  prerequisite  to 
registration,  and  any  informality  in  this  respect  deprives  the 
instrument  of  its  legal  effect  as  constructive  notice.40  When 
properly  attested  no  mention  of  the  fact  seems  necessary  in  the 
abstract,  while  omissions  or  defects  may  be  indicated  by  some 
simple  statement;  as 

No  subscribing  witnesses  shoivn  of  record. 

§  196.  Acknowledgment.  The  statutes  of  all  the  States 
provide  for  a  proof  of  execution  of  conveyances  of  land,  by  an 
acknowledgment  of  the  deed  before  some  officer,  evidenced  by 
his  certificate  of  authentication.     Such  acknowledgment,  prop- 

38  Yale   V.    Flanders,    4    Wis.    96;  39  Woods     Conv.     230;     2     Black. 

Norvell  v.   Walker,   9   W.  Va.   447;       Com.  307;  Dole  V.  Thurlow,  12  Met. 
Mackay     v.     Bloodgood,     9     Johns.        (Mass.)    157. 

(N.  Y.)  285;  Davis  v.  Burton,  4  111.  40  Parret   v.    Shaubhut,    5    Minn. 

41.  323;  Ross  v.  Worthington,  11  Minn. 

441. 


234  ABSTRACTS    OF    TITLE. 

erly  certified,  authorizes  the  production  of  the  instrument  in 
evidence  without  other  or  further  proof  of  its  execution,  and, 
in  some  States,  is  a  prerequisite  to  registration. 

The  certificate  of  authentication  is  no  part  of  the  convey- 
ance, and  is  not  the  act  of  either  party  to  it,41  but  only  evi- 
dence in  regard  to  its  execution  and  acknowledgment,  and,  like 
all  other  evidence,  should  be  reasonably  considered  and  con- 
strued.42 Being  statutory  creations  greater  strictness  is  neces- 
sary in  their  construction,  yet  it  is  a  well  settled  rule,  that  a 
substantial  compliance  with  statutes  prescribing  the  form  and 
requisites  of  an  official  certificate  of  acknowledgment,  or  proof 
of  deeds,  is  sufficient.  It  is  the  policy  of  the  law  to  uphold 
such  certificates  whenever  substance  is  found,  and  not  to  suffer 
conveyances,  or  proof  of  them,  to  be  defeated  by  technical  or 
unsubstantial  objections,  and  in  construing  them  resort  may 
be  had  to  the  deed  or  instrument,  to  which  they  are  appended ;  43 
yet  nothing  will  be  presumed  in  favor  of  an  official  certificate, 
which  must  state  all  the  facts  necessary  to  a  valid  official  act.44 

Of  course,  the  certificate  should  be  signed  by  the  person  mak- 
ing it.  It  is  also  customary  for  the  officer  to  add  a  description 
of  his  office,  as,  "  John  Smith,  Xotary  Public."  But,  while 
this  is  a  usual  and  proper  custom,  it  does  not  seem  to  be  neces- 
sary where  the  body  of  the  certificate  describes  him  as  a  notary 
public  and  acting  officially.  In  such  case  the  omission  of  the 
name  of  his  office  after  his  signature  will  not  have  the  effect 
of  rendering  the  acknowledgment  invalid.45 

The  official  acts  of  a  notary  should  be  authenticated  by 
his  seal,40  particularly  when  a  non-resident  of  the  jurisdiction 

41  An  acknowledgment  taken  by  161;  Tubbs  v.  Gatewood,  20  Ark. 
a  grantee  named  in  the  deed  is  128;  Barnet  v.  Proskauer,  62  Ala. 
void,  though  the  deed  itself  will  486;  Calumet  Co.  v.  Russell,  68  111. 
still    be   valid    and    binding    as    be-  426. 

tween  the  parties  and  its  execution  44  Wetmore  v.  Laird,  5  Biss.  160. 

may  be  established  by  common  law  45  Lake   Erie,   etc.,    R.    R.    Co.   v. 

evidence.     Hogans     v.    Carruth,    18  Whitham,  155  111.  514. 
Fla.  587.  46  The    requisites    of    a    notarial 

42  Harrington  V.  Fish,  10  Mich.  seal  are  determined  by  the  law  of 
415;  Gray  v.  Ulrich,  8  Kan.  112.  the   locality   from   which   the   officer 

43  Wells    v.    Atkinson,    24    Minn.  derives  his  authority ;  or,  if  that  be 


FORMAL  PARTS  OF  DEEDS.  235 

where  the  land  is  situate,  and  usually,  in  such  cases,  his  cer- 
tificate must  also  be  accompanied  by  a  certificate  of  magistracy 
and  conformity  made  by  some  officer  of  competent  authority. 

The  seal  is  prima  facie  evidence  that  the  person  using  it  is  a 
notary,  duly  commissioned,47  etc.,  and  its  absence  should  be 
briefly  noted ;  thus : 

No  notarial  {or  official)  seal  shown  of  record. 

As  a  rule,  a  notarial  certificate  from  another  State  with- 
out a  seal  or  certificate  of  conformity  will  be  invalid ;  4S  and, 
generally,  where  the  statute  requires  a  notary  to  attach  his  seal 
to  certificates  of  his  official  acts,  a  certificate  unauthenticated 
by  the  impression  of  such  seal  is  void.49 

The  law  does  not  usually,  in  terms,  impose  upon  the  recorder 
the  duty  of  transcribing  the  official  seal  of  the  officer  taking  the 
acknowledgment,  and  many  recorders  simply  represent  it  by 
a  scroll  and  the  words  "  seal  "  or  "  notarial  seal;  "  50  but  what- 
ever the  form  that  may  be  employed  to  indicate  the  fact  of  seal- 
ing it  should  be  observed  by  the  examiner.  It  has  been  held, 
in  several  instances,  that  where  there  is   a   statement  in  the 

silent   on   the   subject,   then  by   the  51.     See    also    the    local    statutory 

rules  of  the  common  law.     It  is  de-  provisions  on  this  subject, 

fined  as  an  impression  on  the  paper  49  Welton    r.    Atkinson,    53    Xeb. 

directly,    or    on    wax    or    wafer    at-  674;    Hewitt    V.    Morgan,    88    Iowa, 

tached  thereto,  made  by  the  official  468;    De    Graw   v.    King,    28   Minn, 

as  and  for  his  seal.     In  the  absence  118.      But      compare,      Sonfield     v. 

of    express   legislation   it   need   not  Thompson,  42  Ark.  46. 

contain  his  name,  for  it  is  the  seal,  50  In   Smith  v.  Dal,   13   Cal.   510, 

and  not  its   composition  or  charac-  it  was  held  that  it  is  not  necessary 

ter  of  which  courts  take  judicial  no-  that  the  seal  should  be  copied  upon 

tice.     The    presumption    is    that    a  the  record  and  that  it  is  enough  if 

seal  is  the  official   seal  of  the   per-  it  appears  from  the  record  that  the 

son  it  purports  to  be,  and  who  sub-  deed     copied     was     under    seal.     In 

Bcribed  the  jurat.     In   Re  Phillips,  Bueklen  r.  Hasterlik,    155   111.  42.;. 

14  Xat.  Bankr.  Beg.    ( Xo.  5)    219.  it  was  held  that  the  letters  "  L.  S." 

47  Brown  v.  Phil.  Bk.,  6  Serg.  &  following  the  name  of  a  notary  in 
B.  484;  Stephens  V.  Williams,  46  a  certificate  of  acknowledgment,  as 
Iowa,  540.  shown  in   an  abstract  of  title,  suffi- 

48  Booth  v.  Cook,  20  111.  129;  eiently  indicate  that  an  official  seal 
Texas  Land  Co.  v.  Williams,  51  Tex.  was  attached  to  such  certificate. 


236  abstracts  op  title. 

body  of  the  certificate,  that  the  officer  who  made  it,  affixed 
his  seal  of  office,  a  presumption  is  raised  that  such  was  the  fact, 
and  that  it  is  not  necessary  that  the  record  copy  should  con- 
tain a  fac  simile  of  the  seal,  nor  any  indications  thereof  by 
scroll.51 

But  although  a  deed  is  defectively  acknowledged,  or  even 
not  acknowledged  at  all,  it  is  good  as  between  the  parties  and 
subsequent  purchasers  with  actual  notice,  and  passes  title 
equally  with  one  duly  certified.  The  certificate  does  not  affect 
the  force  of  the  instrument.52  Acknowledgment,  however,  is 
frequently  a  requisite  for  registration,  and  a  deed  must  be  le- 
gally recordable  to  make  the  record  thereof  constructive  no- 
tice.53 

The  certificate  should  state  the  fact  of  acknowledgment,  and 
should  fix  the  identity  of  the  party  making  same,  these  being 
the  great  essentials  of  every  official  authentication.54  A  cer- 
tificate defective  in  either  respect  does  not  show  a  substantial 
compliance  with  the  requirements  of  law,  which  provide  that  the 
grantor  shall  be  known  or  his  identity  satisfactorily  proved  to 
the  certifying  officer.55  When  regular,  the  certificate  is  no- 
ticed at  the  conclusion  of  the  synopsis  by  a  brief  mention  of 
the  fact  and  date,  as, 

Acknowledged  June  1,  1882. 

Slight  defects  or  omissions  may  be  shown  in  a  descriptive 
way,  as: 

Acknowledged  June  1,  1882,  by  William  Smith  only,  (or) 
In  certificate  of  acknowledgment,  said  grantor  s  name  is  written 
"  William  Smythe." 

51  Geary   v.    City   of   Kansas,    61  Bass  v.   Estill,   50  Miss.   300;   Wil- 
Mo.    378;     Griffin    v.    Sheffield,     38  lard  v.   Cramer,   36   Iowa,   22. 
Miss.   359.  54  Bryan  v.  Ramirez,  8  Cal.  461 ; 

52  Stevens  v.  Hampton,  46  Mo.  Pendleton  v.  Button,  3  Conn.  406 ; 
404;    Gray   V.   Ulrich,   8   Kan.    112;  Short  v.  Conlee,  28  111.  219. 

Dole  V.  Thurlow,  12  Met.  157;  Hoy  55  Stuller    v.    Link,    2    Thomp.    & 

v.  Allen,  27  Iowa,  208.  C.    (N.   Y.)    86;   Callaway  v.   Fash, 

53  Pringle  v.  Dunn,  37  Wis.  449;       50   Mo.   420;    Smith  v.   Garden,   28 

Wis.  685. 


FOKMAL  PARTS  OF  DEEDS.  237 

Defects  of  form,  insufficient  statement,  or  non-compliance 
with  the  statute,  will  frequently  require  an  entire  or  partial 
transcription  of  the  certificate.  The  acknowledgments  of  mar- 
ried women,  corporations,  and  persons  acting  by  delegated 
power,  or  in  an  official  capacity,  should  be  closely  scrutinized, 
while  in  several  of  the  States  the  deed  is  ineffectual  to  convey 
the  homestead  estate  unless  the  statutory  right  is  specially 
waived  in  the  acknowledgment.  Where  the  certificate  omits 
any  of  the  jurisdictional  facts  such  omissions  should  be  properly 
noted,  as: 

Certificate  of  acknowledgment  by  James  Thompson,  No- 
tary Public,  Cook  County,  III.,  does  not  state  that  grantors  were 
known  to  him,  or  that  they  waived  their  homestead  rights. 

As  between  the  immediate  parties,  the  certificate  may  be  im- 
peached for  fraud,  collusion,  or  imposition,  but  not  otherwise,56 
As  to  purchasers  for  a  valuable  consideration  without  notice, 
-it  is  conclusive  as  to  all  matters  which  it  is  the  duty  of  the 
acknowledging  officer  to  certify  if  he  has  jurisdiction,57  and 
where  an  officer  is  authorized  to  take  acknowledgments,  it 
will  be  presumed  that  they  were  taken  within  his  jurisdiction.58 

The  subject  will  be  further  considered,  with  practical  exam- 
ples, in  treating  of  specific  conveyances. 

§  197.  Delivery.  Xo  principle  is  better  established  by  the 
entire  current  of  modern  authority  than  that  the  delivery  of  a 
deed  is  essential  to  a  transfer  of  the  title.59  It  is  the  final  act 
consummating  and  confirming  the  conveyance,  and  without 
which  all  other  formalities  are  ineffectual.60     A  deed,  though 

50  Fitzgerald    v.    Fitzgerald,    1-00  Ind.   App.   469;    Cox.   V.   Stern,    170 

111.  385.  111.  442. 

57  Williams  V.  Baker2  71  Pa.  St.  59  Mitchell  v.  Bartlett,  51  N.  Y. 
476;  Wharton  on  Evid.  §  1052;  447;  Stiles  v.  Brown,  10  Vt.  563; 
Borland  v.  Walrath,  33  Iowa,  130;  Fisher  v.  Beckwith,  30  Wis.  55; 
Howkmd  v.  Blake,  97  U.  S.  (7  Otto)  Oliver  v.  Stone,  24  Ga.  63. 

624.  CO  Young    v.    Gailbeau,    3     Wall. 

58  People  V.  Snyder,  41  N.  Y.  397;  636;  Whilaker  v.  Miller,  83  111. 
Teutonia,    etc.,    Co.    v.    Turrell,    19       381  ;      Thatcher     v.     St.     Andrew's 

Church,  37  Mich.   264. 


238  ABSTEACTS    OF    TITLE. 

duly  executed  and  otherwise  perfect,  while  remaining  under 
the  control  of  the  grantor  passes  no  title.01 

To  constitute  a  sufficient  delivery,  the  deed  must  not  only 
be  delivered  by  the  grantor,  but  must  be  accepted  by  the 
grantee,62  though  ordinarily  a  delivery  of  a  deed  implies  an 
acceptance.63  What  constitutes  a  valid  delivery  or  acceptance 
has  been  the  subject  of  a  great  diversity  of  opinion  and  a  vast 
number  of  reported  decisions,  and  is  still,  to  some  extent  an 
open  and  unsettled  question  to  be  determined  by  the  particular 
facts  of  each  case  under  the  application  of  local  law.  These 
questions,  however  important  in  other  respects,  present  but 
few  features  to  the  examiner,  who  looks  only  at  tho  instruments 
as  they  appear  upon  the  records,  and  passes  ou  their  suffi- 
ciency and  legal  effect  from  what  is  there  shown.  The  attesta- 
tion clause  usually  recites  that  the  conveyance  was  "  signed, 
sealed  and  delivered,"  etc.,  but  this  has  been  held,  not  sufficient. 
in  itself,  to  establish  a  delivery.64 

The  recording  of  a  deed  not  only  affords  prime  facie  evi- 
dence of  its  delivery,65  but,  when  the  instrument  is  properly 
executed  and  acknowledged,  raises  a  legal  presumption  of  that 
fact,66  and,  where  it  is  to  the  grantee's  advantage,  oi  its  ac- 

61  Egery  v.  Woodard,  56  Me.  45;  party  will  accept  a  deed  because  ifc 
Fisher  v.  Hall,  41  N.  Y.  416;  Byars  is  beneficial  to  him  will  never  be 
v.  Spencer,  101  111.  429.  Though  it  carried  so  far  as  to  consider  him  as 
seems  that  a  deed  once  delivered  is  having  accepted  it.  Bell  v.  Farm- 
not  invalidated  by  the  fact  that  it  ers'  Bank,  11  Bush  (Ky. ),  34. 
remains  in  the  possession  of  the  04  Ruslin  V.  Shield,  11  Ga.  636; 
grantor.  Wallace  v.  Berdell,  97  N.  but  see,  Howe  V.  Howe,  99  Mass. 
Y.  13.  88. 

62  Comer  V.  Baldwin,  16  Minn.  05Himes  V.  Keighblinger,  14  111. 
172;  Commonwealth  v.  Jackson,  10  469;  Burkholder  v.  Cased,  47  Ind. 
Bush  (Ky.),  424;  Welch  V.  Sacket,  418;  Kille  v.  Eye,  79  Pa.  St.  15; 
12  Wis.  243;  Oxnard  v.  Blake,  45  Jackson  v.  Perkins,  2  Wend.  308; 
Me.  602.  Lawrence    v.    Farley,    24    Hun     (N. 

o:j  Davenport      V.      Whistler,      46  Y.),    293;    Connard    v.    Colgan,    55 

Iowa,    287;    Bundy    v.    Ophir    Iron  Iowa,  538;  Moore  v.  Giles,  49  Conn. 

Co.,    38    Ohio    St.    300;    Bivard    v.  570. 

Walker,    Z9    111.    413.     This    is    the  60  Kille   V.    Eye,    79    Pa.    St.    15; 

general    rule,    and    rests    upon    the  Alexander    v.    Alexander,     71     Ala. 

ground    that   a    party   is    presumed  295;   but  see,  Boyd  V.  Slayback,  63 

to  accept  that  which  is  beneficial  to  Cal.  493. 
him,    yet    the    presumption    that    a 


FORMAL  PARTS  OF  DEEDS.  239 

ceptance  as  well.67  Where  the  grantor  in  a  deed  not  actually 
delivered  causes  the  same  to  be  recorded,  this  has  been  held  a 
sufficient  delivery  to  enable  the  grantee  to  hold  the  land  as 
against  the  grantor  and  those  claiming  under  him.68  Generally 
a  delivery  will  be  presumed,  in  the  absence  of  direct  evidence 
of  the  fact,  from  the  concurrent  acts  of  the  parties  recognizing  a 
transfer  of  title.69 

As  a  general  rule  a  deed  will  be  presumed  to  have  been  de- 
livered on  the  day  it  bears  date,70  though  this  presumption  is 
not  conclusive.71  It  has  been  held  that  where  the  date  of  ac- 
knowledgment is  subsequent  to  the  date  of  the  deed,  there  is  no 
presumption  of  delivery  prior  to  the  acknowledgment.72  The 
volume  of  authority,  however,  does  not  sustain  this  doctrine, 
and  the  date  of  execution,  in  the  absence  of  other  proof  to 
the  contrary,  may  still  be  taken  as  the  true  date  of  delivery,73 
and  not  the  date  of  acknowledgment,  which,  as  a  matter  of 
convenience,  may  well  have  been  made  afterward.74  So  where 
a  grantee  dies  between  the  dates  of  the  deed  and  its  acknowledg- 

6  7  Metcalfe  p.  Brandon,   60  Miss.  title  was   held  to  be   sufficient   evi- 

685;  Masterson  v.  Cheek,  23  111.  73.  dence  that  at  the  time  a  delivery  of 

While  the  recording  of  a   deed  for  the  deed  had   been  made.     Ibid. 

land   may    afford    prima   facie    evi-  70  Deninger  v.  McConnell,  41   111. 

dence    of    its    delivery    and    accept-  22S;  Treadwell  v.  Reynolds,  47  Cal. 

ance,   this   must    be    understood    as  171;     Harcnan     V.     Oberdorfer.     33 

applying  to   a   deed   simply  convey-  Grat.   (Va.)   497;  Eaines  v.  Walker, 

ing  the  land,   and  not  as  applying  77  Va.  92. 

to  a  deed  which  imposes  an  obliga-  71  Whitman  v.  Henneberry,  73  111. 

tion    upon    the    grantee    to    assume  109. 

and  pay  a  pre-existing  incumbrance  72  Fontaine    v.     Savings    Institu- 

on     the      property.     Thompson      V.  tion,  57  Mo.  553 ;  Brolasky  V.  Furey, 

Dearborn,  107  111.  87.  12     Phil.      (Pa.)      428.     Washburn 

68  Kerr  V.  Birnie,  2.5  Ark.  223 ;  also  announces  the  same  principle. 
Dale  V.  Lincoln,  62  111.  22;  Palmer  See  3  Wash.  Real  Prop.  (4th  Ed.) 
V.  Palmer,   62   Iowa,  470.  286. 

69  Gould  v.  Day,  4  Otto  (U.  S.),  73  Hardin  v.  Crate,  78  111.  553; 
405.  Thus  where  a  deed  had  been  Ellsworth  v.  Cent.  R.  R.,  34  N.  J. 
executed  and  recorded  without  the  L.  93;  Billings  v.  Stark,  15  Fla. 
knowledge  of  the  grantee,  who  sub-  297. 

Bequently  executed  a  conveyance  to  74  People  v.  Snyder,  41  N.  Y.  402; 

a  third   party,    this   recognition   by       Hardin   v.  Osborne,   60    til.   93,   and 
both  parties  of  the  transfer  of  the      see  Fisher  p.  Butcher,  19  Ohio,  406. 


240  AESTEACTS    OF    TITLE. 

ment,  it  will  be  presumed  that  the  deed  had  been  delivered  in 
his  lifetime.75  As  a  conveyance  derives  its  effect  and  operation 
only  from  delivery  of  the  deed,  the  question  of  time  will  not 
infrequently  form  an  important  element  in  the  methods  em- 
ployed by  counsel  in  framing  his  opinion  of  the  title,  as  well  as 
in  determining  the  respective  rights  and  relations  of  parties 
who  hold  under  the  deeds,  or  who  show  conflicting  or  adverse 
claims.  The  abstract  will  usually  shed  but  little  light  on  itself, 
and  under  ordinary  circumstances  it  will  be  safe  to  proceed 
on  the  assumption  that  the  date  of  execution  is  also  the  time 
at  which  the  title  to  the  property  conveyed  passed  to  the 
grantee.70  In  case  of  a  forged  instrument,  there  is  no  presump- 
tion of  delivery  either  at  its  date,  or  at  any  other  time.77 

§  198.  Ancient  Deeds.  Deeds  more  than  thirty  years  old 
are  called  "  ancient  deeds,"  and  are  exempt  from  the  usual  tests 
applied  to  conveyances,  being  admitted  in  evidence  without 
proof  of  execution,78  and  where  a  deed  would  be  evidence  as 
an  ancient  deed  without  proof  of  its  execution,  the  power 
under  which  it  purports  to  have  been  executed  will  be  pre- 
sumed.79 This  rule  is  not  uniform,  however,  and  it  has  been 
held  that  a  conveyance,  though  over  thirty  years  old,  can  not 
be  admitted  as  an  ancient  deed  when  purporting  to  be  executed 
by  one  acting  as  administrator  in  the  absence  of  proof  of  his 
authority  to  make  the  deed.  And  when  such  authority  is  con- 
ferred by  an  order  or  decree  of  a  court,  the  jurisdiction  of  the 
latter  to  grant  the  order  or  decree  must  be  shown  on  the  face  of 
the  proceedings.80 

Some  discretion  may  be  employed  by  the  examiner  in  regard 
to  conveyances  of  long  standing,  and  under  which  the  rights  of 
the  parties  have  become  fixed  by  continued  possession  and  en- 
joyment.    It  will  not  be  necessary,  in  many  cases,  to  notice  de- 

75  Eaton  v.  Trowbridge,  38  Mich.  77  Remington  Pap.  Co.  v. 
454.  O'Dougherty,  81  N.  Y.  474. 

76  Breckenridge  V.  Toss,  3  T.  B.  78  Whitman  V.  Heneberry,  73  111. 
Mon.  (Ky. )  150.  The  same  doc-  109;  Gardner  v.  Granniss,  57  Ga. 
trine   is   recognized   and    sanctioned  539. 

by  the  English  decisions  under  their  79  Johnson  V.  Shaw,  41  Tex.  428. 

statutes    of    enrollments.     See    also  80  Fell  v.  Young,  63  111.  106. 

Shep.  Touch.  72. 


FORMAL  PARTS  OF  DEEDS.  241 

focts  that  should  invariably  appear  in  the  case  of  later  deeds, 
particularly  when  rendered  of  no  effect  by  curative  legisla- 
tive enactments. 

Most  of  the  States  have  enacted  statutes  which,  in  effect, 
cure  defects  and  irregularities  in  acknowledgments  of  deeds 
made  a  specified  time  prior  to  such  enactments.  In  the  ab- 
sence of  any  inhibiting  constitutional  limitation,  and  except  as 
against  vested  rights,  it  would  seem  the  legislature  has  power 
to  cure,  by  retroactive  legislation,  defective  acknowledgments 
of  deeds,  in  all  cases  where  the  purpose  of  the  acknowledgment 
is  the  admission  of  the  instrument  acknowledged  to  record  or 
its  use  as  evidence.  Where  the  statute  cures  irregularities  in 
acknowledgment,  the  record  of  such  deed,  made  prior  to  the 
enactment,  is  also  cured  and  rendered  valid,  and  such  record, 
or  a  copy  thereof,  is  properly  admissible  in  evidence.81 

§  199.  Stamps.  By  act  of  Congress,82  July  1,  1862,  and 
acts  amendatory  thereto,83  an  ad  valorem  stamp  duty  was  im- 
posed on  deeds  of  conveyance  and  other  contracts  relating  to 
real  property.  The  act  provided  that  the  stamps  should  be 
affixed  to  the  instrument  and  properly  cancelled,84  and  in  de- 
fault thereof  the  instrument  to  be  invalid.  The  act  became  in 
force  on  and  after  Oct.  1,  1862,  and  continued  for  a  period 
of  ten  years.85  By  the  act  of  June  13,  1898,  a  stamp  duty  was 
again  imposed,  which,  in  various  forms,  continued  until  July 
1,  1902.  On  all  instruments  executed  during  these  periods, 
the  examiner  will  observe  whether  the  record  purports  to  show 
a  stamp.  If  so,  it  should  be  briefly  indicated  in  some  manner, 
as; 

U.  S.  Int.  Rev.  Stamps  for  $1.50  affixed. 

or,  if  none ; 

No  Int.  Rev.  Stamp  shown  of  record. 

81  Summer  v.  Mitchell,  29  Fla.  85  The  duty  was  repealed  by  the 
179.                                                                  act  of  June  6,   1872,  in   force,  Oct. 

82  12  U.  S.  Stat.  475.  1,    1872.     See,    17    Stat,    at    Large, 

83  13  U.  S.  Stat.  299.  256. 

84  13  U.  S.  Stat.  293. 

16 


242 


ABSTRACTS    OF    TITLE. 


The  presence  or  absence  of  the  stamp,  however,  matters  little 
so  far  as  the  validity  of  the  conveyance  is  concerned,  for  it  is 
not  in  the  constitutional  power  of  Congress  to  prescribe  for 
the  States  a  rule  for  the  transfer  of  property  within  them,80 
nor  to  provide  rules  of  evidence  for  the  State  courts,S7  and 
conveyances  are  not  rendered  void  by  the  omission  of  the  pre- 
scribed stamps,88  nor  for  neglect  to  cancel  them  if  affixed.89 
The  act,  so  far  as  it  prescribes  a  rule  of  evidence,  is  operative 
only  in  the  Federal  courts,  and  has  no  application  to  the  courts 
of  the  States.90 

The  right  of  the  Federal  Government  to  collect  a  revenue  by 
the  imposition  of  stamp  duties  is  undisputed,  and  penalties 
may  be  prescribed  for  the  non-payment  of  such  tax.  But  the 
authorities  are  united  in  declaring  that  an  unstamped  instru- 
ment if  otherwise  conforming  to  law,  is  not,  for  that  reason, 
invalid.91 


86  Moore  v.  Moore,  47  N.  Y.  467; 
Carpenter  v.  Snelling,  97  Mass.  452. 

S7  Barbour  r.  Gates,  43  N.  Y.  40; 
Craig  V.  Dirnock,  47  111.  308;  Green 
v.  Holway,  101  Mass.  243;  Griffin 
v.  Ranney,  35  Conn.  293. 

ss  Janvrin  v.  Fogg,  49  N.  H.  340 
Rhienstrom  v.  Cone,  26  Wis.  163 
Brown  V.  Thompson,  59  Me.  372 
Morris  v.  McMorris,  44  Miss.  441 
Latham  r.  Smith,  45  111.  29. 

S9  Agricultural  Assoc,  v.  Neill,  31 
Iowa,  95;  D'Armond  v.  Dubose,  22 
La.  Ann.  131. 


90  Wilson  V,  McKenna,  52  111.  43 
People  v.  Gates,  43  N.  Y.  40;  Sam 
mons  v.  Halloway,  21  Mich.  162 
Woodward  v.  Roberts,  58  N.  H.  503 
Small  v.  Sloeumb,  112  Ga.  279 
Kennedy  v.  Roundtree,  59  S.  C. 
324;  Cos  v.  Estes,  106  Tenn.  472. 

91  Sammons  v.  Halloway,  21  Mich 
162;  Bunker  v.  Green,  48  111.  243; 
Duffy  v.  Hobson,  40  Cal.  240.  An 
apparently  contrary  decision  was 
reached  in  Chartiers,  etc.,  Co.  v.  Mc- 
Xamara,  72  Pa.  St,  278,  but  this 
case  seems  to  stand  alone. 


CHAPTEE  XIV. 


EEEORS,,    OMISSIONS    AND    DEFECTS. 


§  200.  Error  generally.  §  206. 

201.  Defect  of  parties — Grantor.  207. 

202.  Defect  of  parties — Grantee.  208. 

203.  Disparity  of  dates.  209. 

204.  Technical   phrases.  210. 

205.  Misdescription  —  U  n  c  e  r  -  211. 

tainty. 


Misdescription — Omission. 
Misdescription — Quantity. 
Defective    covenants. 
Defective  acknowledgment. 
Continued. 
Repugnancy. 


§  200.  Error  Generally.  Conveyancers,  like  other  mor- 
tals, have  no  immunity  from  error.  ISTot  only  do  the  best 
skilled  often  forget,  but  ignorance  and  carelessness,  assuming 
the  office  and  functions  of  the  conveyancer,  augment  their 
mistakes  a  thousand  fold.  Superadded  to  these,  are  the  errors, 
blunders  and  omissions  arising  during  the  transcribing  from  the 
original  documents  to  the  record,  all  of  which  necessitates  con- 
stant watchfulness  on  the  part  of  both  examiner  and  counsel. 

The  errors  most  common  are  found  in  disparity  of  dates; 
the  acknowledgment  frequently  antedating  the  execution,  and 
occasionally  the  date  of  registration  having  priority  of  both. 
Discrepancies  in  names;  a  particular  name  appearing  in  the 
premises,  another  in  the  execution  and  ofttimes  yet  another  in 
the  acknowledgment.  Manifest  misdescriptions  of  the  prop- 
erty intended  to  be  conveyed  when  compared  with  preceding 
conveyances ;  sometimes  glaring  and  obtrusive  and  again  re- 
tiring and  only  discernible  by  close  and  concentrated  atten- 
tion. Omissions  are  more  frequent  and  palpable.  They  are 
usually  the  result  of  negligence  on  the  part  of  either  the  con- 
veyancer or  recorder,  or  perhaps  both,  and  call  for  a  correspond- 
ing degree  of  care  on  the  part  of  the  examiner.  Where  printed 
forms  are  used  in  conveyancing,  blanks  are  frequently  improp- 
erly filled,  or  quite  as  often  left  untouched.     This  will  fre- 

243 


244  ABSTEACTS    OF    TITLE. 

quently  be  found  to  be  the  case  in  the  matter  of  dates,  personal 
pronouns,  references  to  the  parties,  venue  and  the  like.  Mis- 
descriptions of  the  property  often  occur  where  the  conveyancer 
copies  the  description  from  some  older  deed  in  which  figures, 
initials,  words,  a  course  or  distance,  or  even  a  whole  line  will 
be  omitted  and  pass  unnoticed  until  detected  by  the  examiner. 
These  errors,  appearing  on  the  face  of  the  record,  it  is  the  duty 
of  the  examiner  to  detect  and  carefully  note  in  such  a  manner 
that  the  attention  of  counsel  will  be  drawn  to  them  on  the 
perusal  of  the  abstract. 

§  201.  Defect  of  Parties  — Grantor.  A  discrepancy 
will  frequently  be  noticed  between  the  names  of  the  grantors  in 
the  body  of  the  deed,  usually  written  by  the  conveyancer,  and 
those  in  the  execution,  written  by  the  parties  personally. 
JWhere  the  variation  is  slight  the  difference  may  be  shown  by 
writing  the  name  in  the  caption  or  entitlement  as  it  appears  in 
the  signature,  and  adding  a  statement  at  the  conclusion  of  the 
synopsis  substantially  as  follows: 

In  body  of  deed  (and  certificate  of  acknowledgment)  said 
grantor  s  name  is  written  "  George  A.  Smith/' 

The  error  being  indicated  in  both  names  by  an  underscore. 

Discrepancies  similar  to  the  one  just  noticed  are  frequent, 
but  fortunately  comparatively  harmless.  The  law  knows  but 
one  Christian  name,  and  the  omission  or  insertion  of  a  middle 
name  is  immaterial,1  and  usually  if  there  is  a  variance  between 
the  names  of  the  grantors  as  they  appear  in  the  body  of  the 
deed  and  in  the  signatures,  the  identity  of  the  persons  will 
be  presumed,  until  rebutted,  where  the  deed  has  been  properly 
acknowledged.2  In  case  of  a  radical  difference  in  the  orthog- 
raphy or  sound,  the  names  in  the  premises  should  form  the 
caption  and  the  execution  of  the  deed  should  be  set  forth 
fully. 

l  James    v.    Stiles,    14    Pet.    322;  Franklin  v.  Talmadge,  5  Johns.   (N. 

Dunn    V.    Gaines,    1    McLean,    321;  Y.)   84. 

Erskine  v.  Davis,  25  HI.  251;   Seo-  2  Lyon  v.  Kain,  36  111.  362. 
field    v.    Jennings,    68    Ind.     232; 


ERRORS,    OMISSIONS    AND    DEFECTS.  245 

An  apparent  defect  of  parties  will  sometimes  appear  through 
an  error  of  the  copyist  in  transcribing  the  original  instrument 
to  the  pages  of  the  record.  Thus  a  deed  is  found  from  TIarry 
Thompson.  The  title  of  record,  as  shown  by  the  previous  con- 
veyance, is  vested  in  Harvey  Thompson.  Now  if  the  original 
entries  of  the  examiner  disclose  that  the  deed  in  question  is 
from  Harvey  Thompson  it  may  fairly  be  concluded  that  the 
name  as  recorded  is  an  error  of  transcription.  But  the  ex- 
aminer must  show  the  deed  as  he  finds  it.  This  he  does,  call- 
ing attention  to  the  discrepancy  by  underscoring  the  erroneous 
part  of  the  name  and  then,  for  the  information  of  counsel,  he 
should  append  a  note  something  as  follows: 

Note. —  Our  books  of  original  entry,  compiled  from  original 
instruments  before  the  same  are  spread  of  record,  show 
the  name  of  the  grantor  in  the  foregoing  deed  to  be 
Harvey  Thompson. 

It  sometimes  happens  that,  through  inadvertence  or  mistake, 
the  name  of  the  grantor  has  been  entirely  omitted  in  the  body  of 
the  deed,  and  while  it  has  been  held,  in  some  instances,  that 
one  who  signs,  seals  and  delivers  a  deed  is  bound  by  such  acts 
as  grantor,  although  not  named  as  such  therein,3  the  current 
of  later  decisions  would  indicate  that  a  deed  of  this  kind  is 
ineffectual  to  convey  any  interest  or  pass  title.4  The  theory 
upon  which  the  first  mentioned  class  of  cases  proceed  seems  to 
be,  that  the  signing  of  a  deed  manifests  the  intention  of  the 
signer  to  be  bound  by  it,  and,  hence,  that  courts  should  construe 
such  a  deed  so  as  to  give  effect  to  the  intention  of  the  parties. 
But  the  preponderance  of  authority  holds  that  the  intention  of 
parties  must  be  derived  from  the  language  of  the  deed  itself, 
and,  therefore,  when  there  is  nothing  in  the  body  of  the  deed  to 
show  an  intention  on  the  part  of  the  signer  thereof  to  convey, 

3  Elliott  v.  Sleeper,  2  N.  H.  525;  4  Harrison   v.    Simmons,   55   Ala. 

Thompson  v.  Lovrein,  82  Pa.  St.  510;  Laughlin  V.  Fream,  14  W.  Va. 
432;  Armstrong  v.  Stovall,  26  Miss.  322;  Peabody  v.  Hewitt,  52  Me.  33; 
275.  Bank  v.  Rice,  4  How.  225;  Stone  V. 

Sledge,  87  Tex.  49. 


246  ABSTRACTS    OF    TITLE. 

his  mere  signature  cannot  be  held  to  manifest  such  purpose. 

Where  only  a  portion  of  the  grantors  named  in  a  deed  sign 
and  acknowledge  same,  the  authorities  are  somewhat  divided  as 
to  its  effect.  Some  hold  that  where  a  deed  shows  that  it  was 
intended  to  be  jointly  executed  by  all  the  parties,  an  execution 
and  delivery  by  a  portion  only  is  incomplete  and  does  not  bind 
them ;  5  a  majority  of  cases,  however,  favor  the  contrary  doc- 
trine and  seem  to  sustain  the  principle,  that  the  parties  execut- 
ing will  be  bound  thereby,  and  the  deed  be  sufficient  to  pass 
their  interests.6 

If  the  true  owner  of  land  conveys  by  any  name,  the  convey- 
ance, as  between  him  and  his  grantee,  will  transfer  title,  and  in 
all  cases  evidence  aliunde  is  admissible  to  identify  the  actual 
grantor.7 

§  202.  Defect  of  Parties  — Grantee.  Defects,  of  the 
kind  which  forms  the  caption  to  this  section,  arises  mainly 
from  imperfect  designation,  misnomer  and  omission,  and  from 
their  nature  are  not  always  susceptible  of  easy  detection.  In 
case  of  misnomer  they  will  frequently  appear  only  inf erentially 
by  comparison  with  other  instruments,  but  when  detected  at- 
tention should  be  drawn  to  them.  Where  a  deed  to  William 
Harmon  is  followed  by  a  conveyance  from  William  J.  Her- 
mann, there  is  an  apparent  break  in  the  chain  and  the  examiner 
should  call  attention  thereto  by  an  underscore,  or,  better  still, 
by  a  row  of  short  marks  under  each  name,  thus:  Hermann. 
When  an  understanding  to  that  effect  exists  between  examiner 
and  counsel,  this  method  of  notation  will  also  serve  to  signify 
that  this  is  the  identical  manner  in  which  words  so  treated 
appear  upon  the  records,  and  is  not  due  to  any  negligence  of 
transcription  on  the  par.t  of  the  examiner. 

Defects  similar  to  that  just  considered  are  latent  defects  and 

5  Arthur  v.  Anderson,  9  S.  C.  "  J.  0.  Black,"  parol  evidence  is 
234.  admissible   to   show   that  James   0. 

6  Story  Part.,  §  119;  Parsons  Black  was  the  identical  person  who 
Part.,  §  369.  in   fact  executed  the   deed.     Wake- 

7  As  where  a  deed  purports  to  be  field  v.  Brown,  38  Minn.  361. 
from  John  O.  Black,  and  is  signed 


ERRORS,    OMISSIONS    AND    DEFECTS.  24-7 

susceptible  of  parol  explanation,  and  where  no  new  deeds  are 
made,  affidavits  showing  the  identity  of  the  parties  should  be 
required  by  counsel.  In  construing  deeds  of  this  character,  i.  e., 
where  a  party  takes  under  a  misnomer,  but  conveys  by  his  proper 
name,  courts  are  ever  inclined  to  grant  the  widest  leniency,  for, 
in  the  great  influx  of  foreign  speaking  population  which  the 
United  States  is  constantly  receiving,  mistakes  must  occur  in 
adapting  to  the  English  forms  of  pronunciation,  foreign  names 
and  the  spelling  of  same;  hence  it  has  been  held  that  a  deed  to 
"  Mitchell  Allen,"  followed  by  a  deed  from  "  Michael  Allaine," 
is  not  a  fatal  variance,  and  the  parties  will  be  presumed  to  be 
the  same.8  Very  frequently  the  negligence  of  the  recorder  will 
produce  disparities  of  this  kind,  as  where  the  records  show 
a  deed  to  "  Electa  Wilds  "  and  a  subsequent  deed  of  the  same 
property  from  "  Electa  Wilder,"  "  Wilds  "  being,  however,  the 
true  name.  In  every  case  similar  to  this  the  attorney  examin- 
ing the  abstract  should,  by  proper  inquiries,  ascertain  the  facts, 
and  when  the  defect  is  wholly  due  to  errors  in  transcribing,  a 
re-record  of  the  instrument  should  be  had.  As  a  rule,  defects 
in  the  record  or  paper  title  may  be  cured  or  removed  by  parol 
evidence.9 

Grantees  capable  of  identification,  though  not  fully  named, 
will  nevertheless  take  title ;  thus,  a  deed  to  John  Smith  and  the 
"  other  heirs  at  law  "  of  one  deceased,  would  convey  an  estate 
to  all  the  heirs  of  such  deceased  person  as  fully  as  if  each  were 
specifically  named ; 10  yet  where  one  of  such  "  heirs  "  has  at- 
tempted to  assert  title,  the  abstract  should  show  by  competent 
evidence  his  right  so  to  do.     A  conveyance  to  a  person  specified, 

8  Chiniquy  v.  Catholic  Bishop,  41  140.     And,  generally,  if  a  person  is 

111.     148.     It    has    been    held    that  in  existence  a  conveyance  to  him  by 

where   a    person   accepts   a    deed   of  a    wrong    name    passes    title.     YVil- 

conveyance    in    which    his    name    is  son  V.  White,  84  Cal.  239. 
not  correctly  stated  or  spelled,  he  is  9  Hellreigil  v.  Manning,  97  N.  Y. 

deemed  to  have  adopted  the  cirone-  56;    Shriver    v.    Shriver,    86   N.    Y. 

ous    name    for    the    purpose    of    ac-  575. 

quiring    and    holding    title    to    the  10  Cook  V.  Sinnamon,  47  111.  214; 

land.     Blinn  v.  Chessman,  49  Minn.  Low  v.  Graff,  80  111.  360. 


248  ABSTKACTS    OF    TITLE. 

however,  and  the  heirs  of  a  living  person  would  be  void  as  to 
all  except  the  person  specifically  named.11 

A  deed  to  a  dead  person  is,  of  course  a  nullity,12  though  it 
seems  that  a  conveyance  to  one  at  the  time  dead,  "  or  his  heirs," 
is  good  if  the  heirs  can  he  identified.13  It  seems  almost  un- 
necessary to  remark  that  a  deed  without  a  grantee  is  absolutely 
void.14 

But,  as  previously  shown,  it  is  not  essential  to  validity  that 
the  grantee  shall  be  specifically  named.  It  is  enough  that 
sufficient  appears  to  distinguish  him  from  the  rest  of  mankind, 
and  if,  by  proper  construction,  this  can  be  done  the  grant  will 
not  fail.  Thus,  where  a  deed  recited  that  the  grantor  in  con- 
sideration  of  a   sum   of  money  paid   by  John   Smith   "  does 

hereby  convey  unto  the  said  all  right,  title  and     interest 

in  and  to  "  property  then  described,  the  deed  was  held  a  valid 
conveyance  to  John  Smith.  This  presents  a  familiar  case  of 
omission  by  an  unskilled  draughtsman.  The  recital  that  the 
money  was  paid  by  John  Smith  raises  a  strong  but  not  conclu- 
sive presumption  that  he  was  intended  for  the  grantee,  but 
the  imperfect  granting  clause  recites  that  the  grant  is  to  "  the 

said ,"  clearly  indicating  some  person  theretofore  named. 

The  only  persons  to  whom  reference  could  be  made  are  the 
grantor  and  John  Smith,  hence  the  court  in  construing  the 
deed  held  that  the  grantee  was  sufficiently  identified.15 

§  203.  Disparity  of  Dates.  A  frequent  defect  in  deeds 
is  a  disparity  of  dates,  that  is,  the  acknowledgment  antedating 
the  execution,  etc.  This  is  a  minor  defect,  however,  that 
does  not  go  to  the  foundation  of  the  deed,  for  the  date  may 
be  disregarded  in  a  proper  case  and  the  deed  will  yet  stand. 

In  point  of  form  the  date  is  not  essential,  and  is  valuable 
chiefly  as  an  evidence  of  time  in  passing  on  the  rights  of  parties, 
or  fixing  the  status  of  the  conveyance  in  respect  to  other  deeds 

u  Hall   v.    Leonard,    1    Pick.    27;  13  Neal  v.  Nelson,  117  N.  C.  393. 

Winslow    v.    Winslow,    52    Ind.    8;  14  Whitaker  v.  Miller,  83  111.  381. 

but  see  Grimes  v.  Orrand,  2  Heisk.  1 5  Henning  v.  Pasehke,  9  N.  Dak. 

(Tenn.)    298.                                    »  489. 

12  Hunter  v.  Watson,  12  Cal.  363. 


EEBOES,    OMISSIONS    AND    DEFECTS.  249 

or  transfers  of  title.  For  the  purpose  of  operative  conveyance 
the  time  of  delivery  is  the  true  date,  and  this  may  always  be 
shown  by  parol.  Attention  is  called  to  defects  or  disparities 
of  dates  by  a  broad  dash  or  underscore,  as 

Dated  June  —  1883,  or  Dated  June  13,  1883. 

In  the  latter  case,  both  dates,  or  as  many  as  appear  irreconcil- 
able, must  be  treated  in  this  manner,  and  the  disparity  will 
thus  be  brought  prominently  before  the  notice  of  the  person 
perusing  the  abstract. 

§  204.  Technical  Phrases.  Whenever  it  is  apparent  that 
a  grantor  has  used  a  technical  word  to  express  an  idea  differ- 
ent from  its  technical  signification,  a  court  will  construe  it 
according  to  the  manifest  intention  of  the  grantor,16  but  in  as- 
certaining such  intent,  whore  the  words  employed  are  not 
technical,  they  must  be  taken  in  their  usual  acceptation.17 

In  conveyancing  a  large  number  of  phrases  have  obtained 
currency,  which,  practically,  neither  add  to  nor  detract  from 
the  force  of  that  which  precedes  or  follows,  but  are  retained 
and  used  in  much  the  same  manner  as  numerous  other  inci- 
dents of  modern  deeds,  rather  for  their  supposititious  efficacy 
than  for  any  real  utility.  Of  this  class  is  the  language 
"  more  or  less,"  which  is  extensively  used  in  deeds  and  con- 
tracts for  the  sale  of  land.  This  term  must  be  understood 
to  apply  only  to  small  excesses  or  deficiencies  attributable  to 
the  variation  of  the  instruments  of  surveyors,  etc.18  In  like 
manner  the  words  "  known  as,"  in  a  description  in  a  deed, 
is  a  mere  formula  and  has  no  restrictive  effect.19  "  And  all 
the  buildings  thereon,"  etc.,  have  no  legal  signification.20  So, 
also,  many  phrases  in  the  body  of  the  deed  are  without  force; 

16  C.  P.  R.  R.  Co.  v.  Beal,  47  less "  will  cover  any  deficiency  not 
Cal.  151.  so  gross  as  to  justify  the  suspicion 

17  Bradshaw  v.  Bradshaw,  64  Mo.  of  wilful  deception  or  mistake 
334.  amounting     to     fraud:      Wylly     v. 

i&  Benson  v.   Humphreys,   75   Va.  Gazan,  69  Ga.  506. 

196.     It    has    been    held,    however,  loKneeland  v.  Van  Valkenburgh, 

that  a  qualification  of  the  quantity  46  Wis.  43'4. 

of  a  lot  of  land  sold  as  "more  or  20  Crosby  v.  Parker,  4  Mass.  110. 


250  ABSTRACTS    OF    TITLE. 

as,  the  words  "  to  his  and  their  proper  use  and  behoof,"  etc., 
following  the  words  of  limitation.  These  words  have  no  par- 
ticular meaning  or  effect  in  determining  either  the  extent  of  the 
interest  conveyed,  or  the  nature  and  quality  of  the  estate  in 
tended  to  be  vested.  In  deeds  of  bargain  and  sale,  at  the  pres- 
ent time,  they  serve  no  office  whatever.21 

Words  and  phrases  similar  to  the  foregoing,  detract  nothing 
from  the  deed  by  their  omission  and  do  not  call  for  notice,  but 
where  technical  words  of  limitation,  purchase,  inheritance,  etc., 
are  omitted  in  deeds  purporting  to  convey  only  limited  or  spe- 
cial interests  or  estates,  it  will  sometimes  become  advisable  to 
show  such  omission,  together  with  such  parts  of  the  habendum, 
or  other  operative  portions  of  the  deed,  as  will  supply  the  miss- 
ing words  or  indicate  the  undefined  intent  of  the  grantor.  The 
intent,  when  apparent,  and  not  repugnant  to  any  rule  of  law, 
will  always  control  technical  terms;  for  the  intent  and  not  the 
words,  is  the  essence  of  every  agreement.22 

§  205.  Misdescription  —  Uncertainty.  Ambiguous  and 
uncertain  descriptions,  particularly  when  composed  of  calls  for 
courses  and  distances,  are  among  the  most  common  defects  found 
in  modern  deeds.  They  arise  frequently  from  the  carelessness 
and  inattention  of  the  conveyancer,  but  more  often,  perhaps, 
from  a  false  economy  in  the  survey,  the  draughtsman  computing 
his  distances  and  framing  his  courses  by  reference  to  some  for- 
mer map  or  survey,  and  not  by  actually  running  the  lines  in 
the  field.  This  very  convenient,  but  equally  pernicious  sys- 
tem, prevails  to  an  alarming  extent  in  modern  conveyancing, 
and  when  attempted  by  incompetent  hands,  is  often  followed  by 
uncertainty  if  not  fatal  error.  In  all  cases  of  description  by 
metes  and  bounds,  the  description  in  the  deed  under  examina- 
tion should  be  compared  with  both  former  and  subsequent  ones 
as  given  in  other  conveyances,  and  with  the  true  description  of 
the  tract  that  forms  the  subject  of  the  examination.  This  task 
should  be  performed  both  by  the  examiner  and  by  counsel,  and 
is  a  precaution  never  to  be  omitted. 

21  Jackson    v.    Cary,     16    Johns.    302;  Brown  v.  Renshaw,  57  Md.  67. 
22Callins  v.  Lavelle,  44  Vt.  230. 


ERRORS,    OMISSIONS    AXD    DEFECTS.  251 

An  imperfect  or  uncertain  description  does  not,  of  itself, 
vitiate  the  conveyance,  provided  it  affords  definite  means  by 
which  the  identity  of  the  premises  may  be  established;  as  by 
reference  to  certain  known  objects  or  things,23  or  to  perfect  de- 
scriptions in  other  deeds.24  In  the  absence  of  references,  or 
other  identifying  circumstances,  if  the  land  be  so  inaccurately 
described  as  to  render  its  identity  wholly  uncertain,  the  grant 
is  void.25  The  same  rule  applies  with  equal  force  to  excep- 
tions and  reservations  from  the  grant,  for  although  the  grant 
may  prevail,  the  exception  may  be  void  for  uncertainty.26 
What  is  here  meant,  however,  is  legal  invalidity,  for  notwith- 
standing that  at  law  a  deed  may  be  void  on  its  face  for  want 
of  a  definite  description  of  the  land  intended  to  be  conveyed, 
yet,  in  equity,  it  may  be  reformed  upon  proper  allegations  and 
proof  of  extrinsic  facts.27 

Imperfect  descriptions  creating  uncertainty  by  reason  of 
vagueness  are  common,  particularly  in  case  of  tax  deeds ;  as, 
'■'  200  acs.  in  Sec.  2,"  etc. ;  no  particular  portion  of  the  section 
being  designated.  A  deed  is  not  necessarily  void  for  uncer- 
tainty where  land  is  described  by  a  general  name  or  designation, 
which  by  extrinsic  evidence  can  be  fully  identified,28  and,  as 
a  rule,  a  deed  will  only  be  held  void  for  uncertainty,  where, 
after  resort  to  oral  proof,  it  still  remains  a  matter  of  conjecture 
what  was  intended  by  the  instrument.29  It  will  be  understood, 
however,  that  this  alludes  only  to  latent  ambiguity.30 

§  206.  Misdescription  —  Omission.  One  of  the  principal 
elements  of  uncertainty  in  descriptions  is  produced  by  omis- 
sions of  essential  particulars,  though  the  effect  of  such  omissions 
is  not  the  same  in  all  the  States.  The  name  of  the  county  and 
State  in  which  the  land  is  situate  usually  precedes,  and  some- 

2.3  Coats    v.    Taft,    12    Wis.    388;  2G  Thayer  V.   Torry,   37   N.   J.   L. 

Smith  v.  Crawford,  81   111.   296.  339. 

24  Russell  v.   Brown,  41   111.    184.  27  Greene    V.    Dickson,     119    Ala. 

25Cak'ord    V.    Alexander,    67    HI.  346. 

581;    Campbell   v.   Johnson,   44   Mo.  28  Tucker  V.   Field,   51  Miss.   191. 

247;    Dickins   v.    Barnes,    79   N.    C.  29  Smith  v.  Crawford,  81  111.  296. 

490;   Rollin  v.   Pickett,  2  Hill    (N.  30  Bowers   v.   Andrews,    52   Miss. 

Y.),  552.  596. 


252  ABSTRACTS    OF    TITLE. 

times  follows  the  description.  Its  insertion  tends  to  greater 
certainty,  yet  the  entire  omission  of  this  particular  is  of  minor  • 
consequence,  provided  the  section,  town  and  range  is  correctly 
stated,  as  there  can  be  but  one  locality  answering  that  descrip- 
tion,31 but  a  description  giving  simply  the  subdivision  of  the 
section,  and  omitting  the  section,  town  and  range,  would  be 
so  defective  that  it  would  convey  nothing,32  even  though  the 
county  and  State  were  given.33  A  very  common  omission  is 
found  in  the  matter  of  the  meridian,  as  where  lands  are  de- 
scribed as  "  Section  10,  Town  39,  North  Range  14  East."  The 
insertion  of  the  county  and  State  will  serve,  in  large  measure, 
to  correct  the  uncertainty  thus  created  but  should  the  county 
and  State  be  also  omitted  the  description  is  fatally  defective 
unless  aided  by  extrinsic  evidence. 

But,  as  previously  stated,  a  material  omission  will  not  usu- 
ally invalidate  an  instrument,  where  other  adequate  elements 
of  identification  exist.34 

§  207.  Misdescription  —  Quantity.  A  recital  in  a  con- 
veyance of  land  that  the  tract  contains  a  certain  number  of 
acres,  unless  there  is  an  express  covenant  as  to  quantity,  will 
always  be  regarded  as  a  part  of  the  description  merely,  and  if 
inconsistent  with  the  calls  of  the  deed,  will  be  rejected  as  sur- 
plusage.35 Such  a  recital  aids,  but  does  not  control,  the  de- 
scription of  the  grant. 

§  208.  Defective  Covenants.  Defective  covenants  form 
a  fruitful  source  of  litigation,  as  well  as  of  vexation  and  an- 
noyance, and  the  examiner  should  devote  especial  care  in  ab- 
stracting this  portion  of  the  deed,  to  the  end  that  through  his 
negligence  the  intending  purchaser  may  not  also  buy  a  lawsuit. 

31  Howe  V.  Williams,  50  Mo.  252;  33  Such   a   deed,   though   inopera- 

Beal  V.  Blair,  33  Iowa,  318;   Slater  tive    as   a   conveyance,    would   raise 

v.  Breese2  36  Mich.  77;   Sickmon  v.  an  equity  in  the  land  sought  to  be 

Wood,   69   111.   329 ;    compare  Lloyd  conveyed    in    favor    of   the   grantee. 

v.  Bunce,  41  Iowa,  660.  Lloyd  v.  Bunce,  41  Iowa,  660. 

32Tollenson  v.  Gunderson.  1  Wis.  34  Slater  v.  Breese,   36  Mich.   77. 

113;  Fuller  v.  Fellows,  30  Ark.  657;  35  Fuller  v.  Carr,  33  N.  J.  L.  157; 

but  compare  Butler  V.  DavisA  5  Neb.  Campbell   v.   Johnson,   44  Mo.   247; 

521.  Ufford  v.  Wilkins,  33  Iowa,   110. 


EKRORS,    OMISSIONS    AND    DEFECTS.  253 

The  majority  of  these  errors  arise  through  the  stupidity  or 
carelessness  of  incompetent  draughtsmen  in  the  use  of  printed 
forms,  and  unless  closely  scrutinized  they  will  sometimes  es- 
cape the  eye  of  even  an  expert  examiner.  A  familiar  exam- 
ple —  one  occurring  more  frequently,  perhaps,  than  any  other 
—  is  in  the  commencement  of  the  collective  covenant  clause, 
which  reads :  "  And  the  said  parties  of  the  first  part  for  — ." 
Here  follows,  in  the  printed  blank,  a  space  intended  to  be  filled 
by  the  conveyancer,  with  a'  personal  pronoun  descriptive  of  the 
granting  party  or  parties.  The  conveyancer  neglects  to  fill 
this  space ;  and  the  clause  continues,  "  their  heirs,"  etc.,  "  do 
covenant,"  etc.  Here  there  is  certainly  no  direct  covenant  on 
the  part  of  the  granting  parties,  and  in  a  similar  case  in  Illi- 
nois, it  was  held  that  the  legal  effect  of  a  covenant  of  this  char- 
acter is  not  that  the  grantors  will  defend  the  title,  but  that  the 
same  shall  be  defended  by  their  heirs,  etc. ;  that  it  does  not  give 
a  right  of  action  against  grantors  on  the  loss  of  the  title,  but 
provides  a  remedy  against  their  legal  and  personal  represent- 
atives; that  it  exempts  the  grantors  from  personal  liability, 
but  binds  their  descendants  in  respect  of  the  estate  that  may  be 
cast  upon  them ;  that  it  is  not  like  a  covenant  that  a  person 
who  is  not  a  party  to  the  deed  shall  warrant  and  defend  the 
title,  for  in  such  case,  upon  the  eviction  of  the  grantee,  and  the 
failure  of  such  third  person  to  comply  with  the  terms  of  the  cov- 
enant, an  action  might  be  maintained  against  the  grantor,  on 
the  familiar  principle  that  what  a  party  undertakes  shall  be 
performed  by  another,  he  must  himself  perform  on  the  default 
of  that  other.  Here,  the  covenant  is  that  the  act  shall  be  per- 
formed by  parties  who  can  have  no  legal  existence  during 
the  lives  of  the  grantors,  and  until  their  decease  there  is  no  per- 
son living  who  can  be  called  upon  to  avouch  the  title.30 

A  covenant  by  the  grantors  — "  for  them  —  heirs,"  etc. —  has 
been  construed,  "  themselves,  their  heirs,"  etc.,  and  held  to  be 

36  Rufner    v.    MeConnel,    14    111.  "  practical  forms."     See  "  New  Wis- 

168;  Traynor  V.  Palmer,  86  111.  477.  consin    Form    Book,"    p.    92,    form 

The  error   above   indicated   is   com-  No.  2. 
mon,  and  can  be  found  in  books  of 


254  ABSTRACTS    OF    TITLE. 

the  covenant  of  grantors.37  If  the  grantors  covenant  for  them- 
selves, the  neglect  to  insert  the  words  "  their  heirs,"  etc.,  after 
the  allusion  to  the  grantors,  is  only  a  minor  defect,  and,  while 
it  calls  for  notice,  is  attended  with  no  evil  consequences.  The 
legal  effect  of  the  covenant  would  be  the  same  if  all  reference 
to  the  heirs,  executors  and  administrators  were  omitted,38  and 
this  applies  as  well  to  grantees  as  to  grantors. 

§  209.  Defective  Acknowledgment.  The  office  of  the 
acknowledgment  is  to  authenticate  the  deed,  but  to  be  effective 
for  this  purpose,  it  must  conform  to,  or  substantially  follow,  the 
directions  of  the  statute,  both  as  to  the  certifying  officer  and  the 
form  and  substance  of  the  certificate.  The  certificate,  however, 
is  no  part  of  the  deed,  but  only  evidence  of  its  execution,  and, 
like  all  other  evidence,  should  be  reasonably  considered  and 
construed.39  A  substantial  compliance  with  the  statute  pre- 
scribing its  form  and  requisites  is  all  that  is  required,40  and 
minor  defects,  not  going  to  the  essence  of  the  acknowledgment, 
may  be  disregarded. 

Clerical  errors  are  common,  and  arise  mainly  in  the  use  of 
printed  forms,  where  blanks  are  improperly  filled  or  passed 
over  without  filling.  Courts  are  always  inclined  to  construe 
such  defects  liberally,41  and  only  purchasers  for  value  can  take 
advantage  of  a  defective  acknowledgment.42  Where  a  certifi- 
cate stated  that  "  Personally  appeared  before  me  P.  H.  and  E. 

H.,  his  wife,  who personally  known  to  me,"  etc.,  omitting 

"  are  "  after  "  who,"  it  was  held  that  such  omission  did  not  im- 
pair the  deed,  as  "  who  "  might  be  disregarded  as  superfluous, 
and  the  certificate  would  then  be  correct.43  So  where  the  word 
"  appeared  "  was  omitted  after  the  phrase  "  before  me  person- 

37  Baker  v.  Hunt,  40  III.  264.  41  Scharfenburg  v.  Bishop,  35  la. 

38  Hall  v.  Bumstead,  20  Pick.  2;  60;  Fisher  V.  Butcher,  19  Ohio,  406; 
Bell  v.  Boston,  101  Mass.  506.  McCardia    v.    Billings,    10    N.    Dak. 

39  Harrington   17.    Fish,    10   Mich.  373. 

415.  42Mastin  v.  Halley,  61   Mo.   196. 

40  Calumet,  etc.,  Co.  r.  Russell,  43  Hartshorn  V.  Dawson,  79  111. 
68   111.  426;   Carpenter  v.  Dexter,  8       108. 

Wall.  513;   Summer  v.  Mitchell,  29 
Fla.   179. 


ERRORS,    OMISSIONS    AND    DEFECTS.  255 

ally,"  the  omission  was  held  to  be  a  clerical  error,  and  not  fatal 
to  the  validity  of  the  acknowledgment ;  44  again,  a  certificate 
that  A  "  to  me  well  known,"  etc.,  was  held  to  be  substantially 
in  the  form  prescribed  by  statute,  viz. :  that  A  "  known  to  me 
to  be  the  person  whose  name  is  subscribed  to  the  foregoing 
instrument,  acknowledged,"  etc.,45  and,  generally,  when  the  de- 
fect can  be  reconciled,  or  does  not  defeat  the  acknowledgment 
by  indefiniteness  or  uncertainty,  it  will  not  invalidate.46 

Another  common  defect,  and  one  that  raises  a  very  embar- 
rassing question,  is  presented  in  the  case  of  a  misplaced  or  im- 
proper pronoun.  In  most  printed  forms  the  recital  of  ac- 
knowledgment reads,  "  and  acknowledged  that  —  he  —  signed, 
sealed,  delivered  "  etc.,  the  purpose  of  this  "  labor  saving  "  de- 
vice being,  to  allow  the  blanks  before  and  after  the  word  "  he  " 
to  be  filled  by  letters  that  shall  make  the  words  "  she "  or 
"  they  "  according  as  the  exigencies  of  the  case  may  require. 
The  careless  or  ignorant  draughtsman  frequently  neglects  to 
avail  himself  of  the  device  and.  the  deed  goes  forth  with  an 
ambiguous  recital  of  one  of  the  essential  facts  of  acknowledg- 
ment. The  mistake  often  occurs  in  the  case  of  a  joint  ac- 
knowledgment by  husband  and  wife  and  the  effect  of  the  cer- 
tificate, in  such  event,  is  that  the  parties  appeared  before  the 
officer  and  acknowledged  that  "  he,"  the  husband,  executed  the 
instrument.  ¥o\v  it  is  undoubtedly  true,  under  the  general 
trend  of  the  decisions,  that  obvious  errors  or  omissions,  clearly 
appearing  upon  the  face  of  the  certificate  to  be  clerical  in  their 
nature,  will  not  invalidate  the  acknowledgment,  and  that,  before 
a  certificate  will  be  held  fatally  deficient,  there  must  be  an  ab- 
sence of  some  essential  fact  of  a  substantial  character.  But,  is 
not  an  omission  like  the  one  now  under  consideration  a  matter 
of  substance  ?  In  a  recent  case  where  the  question  was  pre- 
sented it  wras  held  that  it  would  render  the  whole  sentence  use- 
loss  and  meaningless,  so  far  as  the  wife  was  concerned,  to  place 
upon  it,  the  construction  that  she  appeared  before  the  notary  and 

44  Scharfenburg     v.     Bishop,     35  45  Watkins  v.  Hall,  57  Tex.  1. 

Iowa,  60.  4G  Ogden  t'.  Walters,  12  Kan.  282. 


256  ABSTRACTS    OF    TITLE. 

acknowledged  that  her  husband  executed  the  deed,  yet  that  such 
construction  must  be  had  unless  it  was  held  that  the  word  "  he  " 
was  not  changed  to  "  they  "  through  a  clerical  oversight.  To 
hold  the  former,  it  was  contended,  would  be  a  strained  and 
technical  construction  of  the  language  used,  and  so  the  certifi- 
cate was  sustained.47 

A  material  omission,  unaided  by  other  circumstances,  will 
vitiate  the  acknowledgment,  as  where  purporting  to  be  made 

by  Smith,   without   other   designation   of  the   person ;  48 

but  it  has  been  held  that  where  the  certificate  omits  the  name  of 
grantor,  if  it  yet  shows  that  the  party  who  appeared  before  the 
officer  was  the  grantor,  and  that  he,  and  no  one  else  appeared 
and  acknowledged,49  or  if  he  is  referred  to  by  name  in  the 
wife's  acknowledgment,50  this  will  be  sufficient.  In  all  cases 
the  error  or  omission  should  be  clearly  indicated  by  the  exam- 
iner, and  in  such  a  manner  that  counsel  can  pass  upon  it  with 
relation  to  the  context.  Hence  so  much  of  the  certificate  should 
be  presented  in  all  cases  which  seem  to  require  it,  as  will  ef- 
fectuate this  end. 

A  defect  of  frequent  occurrence  will  be  found  in  disparity 
of  dates,  as  where  the  date  of  the  deed  is  subsequent  to  the 
date  of  acknowledgment;  yet  this  error,  while  it  calls  for  notice, 
is  of  minor  importance  and  does  not  constitute  a  valid  objection 
to  the  title.51  Such  antedating  is  usually  the  result  of  clerical 
mistake  and  is  so  construed  in  the  absence  of  any  matters  cal- 
culated to  raise  a  contrary  presumption,  and  as  the  officer  in 
taking  an  acknowledgment  is  required  to  certify  both  the  day 
and  the  year  he  will  be  presumed  to  have  performed  his  duty 
■and  will  not  be  supposed,  without  proof,  to  have  taken  the  ac- 
knowledgment before  the  deed  was  in  fact  executed.52 

§  2.10.      Defective    Acknowledgment  —  Continued.      A 

47  McCardia  b.  Billings,  10  N.  50  Magness  v.  Arnold,  31  Ark. 
Dak.   373;    see  also,  Kontgomery  r.       103. 

Hornberger,   16   Tex.   Cir.   App.   28.  51  Dressel    v.    Jordan,    104    Mass. 

48  Hiss  v.  McCabe,  45  Md.  77.  407. 

49  Wilcoxcn  t.  Os!h?jt.j  77  Mo.  52  Cover  v.  Manaway,  115  Pa.  St. 
621.  338. 


ERKORS,    OMISSIONS    AND    DEFECTS.  257 

certificate  in  which  the  person  taking  the  acknowledgment  gives 
himself  no  official  designation  or  title  is  fatally  defective,  for  an 
acknowledgment  or  proof  amounts  to  nothing  unless  it  be  taken 
by  an  authorized  officer,  and  whether  the  person  be  authorized 
or  not,  is  a  fact  which  should  appear  in  the  certificate  of  the 
officer  himself.53  But  when  it  appears  from  the  Certificate  that 
it  was  taken  by  an  authorized  officer,  it  is  not  necessary,  nor  is 
it  customary,  for  him  to  state  in  so  many  words,  that  he  was 
authorized  to  take  such  proofs.54  If  the  title  of  an  officer  tak- 
ing an  acknowledgment  is  written  out  fully  in  the  body  of  the 
certificate  it  has  been  held  that  the  omission  of  such  title  from 
the  signature  is  immaterial ;  55  if  the  title  of  the  officer  is 
affixed  to  the  signature,  this,  it  seems,  is  sufficient  without  men- 
tion elsewhere,56  and  in  some  cases  it  has  been  hold  that  the 
use  of  initials  generally  understood  to  stand  for  the  title  of 
an  office  will  answer  the  same  purpose  as  the  full  title.57 

A  question  sometimes  arises  with  respect  to  capacity  when 
the  actual  acknowledgment  is  taken  by  a  deputy,  and  not  by  the 
officer  in  person.  It  is  generally  held,  however,  in  the  case  of 
court  officers,  that  where  the  acknowledgment  purports  to  be 
taken  by  the  clerk  and  is  certified  in  his  name,  with  a  seal  of 
court  attached,  it  will  be  sufficient,  and  that  the  certificate  is 
none  the  less  the  act  of  the  clerk  because  made  by  his  deputy.58 
It  is  further  held,  that  the  seal  of  a  court  affixed  to  a  certificate 
carries  with  it  a  presumption  that  it  was  properly  attached.59 

The  want  of  a  seal  is  usually  no  defect  where  the  land  con- 
veyed is  within  the  certifying  officer's  jurisdiction,  yet  it  is 
a  general  rule,  that  whenever  a  certifying  officer  is  required  to 
have  a  seal  he  must  authenticate  his  certificate  under  his  official 

53  Lessee  of  Johnston  v.  Haines,  56  Russ  v.  Wingate,  30  Miss.  440. 
2  Ohio,  55;  Cassell  v.  Cook,  11  57  See,  Rowley  t>.  Berrian,  12  111. 
Ohio,    610.  198;    Russ    r.    Wingate,    30    Miss. 

54  Livingstone  v.  McDonald,  9  4.4Q;  Final  v.  Backus,  18  Mich.  218; 
Ohio,    108.  Own  v.  Baker,  101  Mo.  407. 

55 Colby    v.    McOmber,    71     Iowa,  58  Hope    r.    Sawyer,    14    111.    254; 
469;  Brown  v.  Farran,  3  Ohio,  140;  Small  v.  Field.  102  Mo.  104;   Bern- 
Lake  Erie,  etc.,  R.  R.  Co.  v.  Whet-  don  v.  Reed,  82  Tex.  017. 
hans,    155;    111,    514.  50  Small  v.  Field,  102  Mo.   II. 
17 


258  ABSTRACTS   OF    TITLE. 

seal,60  as  well  as  his  signature,  and  its  presence  is  usually  made 
by  statute  an  indispensable  requisite  when  the  officer  resides 
beyond  the  State.  The  form  of  the  notary's  seal  is  a  matter  of 
minor  importance.  The  recorder  is  not  required  to  make  a 
fac  simile  of  the  impression  of  the  seal  upon  his  books,  and 
generally  could  not  if  he  were;  ordinarily  he  is  permitted  to 
show  it  by  a  scrawl,  the  record  then  disclosing  the  fact  of  seal- 
ing and  that  the  seal  used  purported  to  be  a  seal  of  office.  This 
is  about  all  that  is  required  and  persons  dealing  upon  the  faith 
of  the  record  will  be  protected  by  it.61 

A  certificate  defective  in  venue  is  insufficient  for  failing 
to  show  the  locality  in  which  the  act  is  done,  though  this  may 
be  cured  by  the  certificate  of  conformity,62  or  even  by  the  seal,63 
when  the  county  only  has  been  omitted,  and  the  officer  has  au- 
thority to  exercise  his  office  in  any  part  of  the  State ;  but  this 
omission  has  been  held  in  Iowa  to  be  fatally  defective,  and  the 
seal  inefficient  to  cure  the  defect.64  In  a  properly  drawn 
certificate,  the  date  as  well  as  the  place  of  acknowledgment 
should  appear,  yet  it  would  seem  that  the  want  of  a  date  to  a 
certificate  otherwise  good,  will  not  vitiate  it.65  An  acknowl- 
edgment taken  by  the  grantee  is  of  no  effect,  though  the  deed 
would  still  be  binding  between  the  parties  and  their  heirs.66 

The  main  defects  of  substance  are  a  failure  to  state  the 
fact  of  acknowledgment,  or  to  fix  the  identity  of  the  parties.67 
These  are  the  two  essentials  and  neither  can  be  dispensed  witK 
The  certificate  must  state  the  fact  of  acknowledgment.  It  is 
this  which  forever  afterward  binds  the  party,  even  though  he 
may  not  acknowledge  the  instrument  freely  in  point  of  fact; 
yet  if  he  acknowledges  properly,  he  is  afterward  estopped  to 
deny  his  act  as  against  subsequent  innocent  purchasers.     The 

60  Mason  v.  Brock,  12  111.  273.  64  Willard    v.    Cramer,    36    Iowa, 

61  Sonfield  v.  Thompson,  42  Ark.       22. 

46;    Hammond    v.    Gordon,    93   Mo.  65  Irving  v.  Brownell,  11  111.  402. 

223;  Jones  v.  Martin,  16  Cal.   166;  66  Hogans    v.    Carruth,     18    Fla. 

Griffin  v.  Sheffield,  38  Miss.  359.  587. 

62  Hardin  v.  Osborne,   60  111.   93.  67  Bryan  V.  Kamirez,  8  Cal.  461; 

63  Chiniquy  v.  Bishop  of  Chicago,  Pendleton  v.  Button,  3  Conn.  406; 
41    111.    148.  Short  v.  Conlee,  28  111.  219. 


EREOKS,    OMISSIONS    AND    DEFECTS.  259 

officer  is  bound  to  know  and  certify  the  identity  of  the  person 
making  the  acknowledgment.  Such  person  must  be  known  to 
him  as  the  person  who  executed  the  instrument  and  must  be  so 
certified.  A  certificate  deficient  in  this  respect  is  fatally  de- 
fective.68 

The  examiner  will  further  observe,  where  the  acknowledg- 
ment appears  to  have  been  taken  in  a  foreign  jurisdiction,  that 
the  officer's  certificate  conforms  to  local  regulations,  and  if  not, 
that  it  is  accompanied  by  a  certificate  of  conformity  to  the  law 
of  such  foreign  jurisdiction,  made  by  some  competent  officer. 
In  the  case  of  some  officers,  particularly  those  not  having  a  seal, 
a  certificate  of  magistracy  must  also  accompany  the  certificate 
of  acknowledgment.  Should  no  such  certificate  appear,  after 
noting  the  defects  or  divergence,  the  examiner  will  add : 

No  certificate  of  magistracy  or  conformity  slioivn  of  record. 

When  accompanied  by  such  certificate,  its  purport  should 
appear,  thus: 

Certificate  of  magistracy  and  conformity  by  Jno.  Smith, 
Clerk  of  the  Circuit  Court,  Cook  County,  III.,  69  appended. 

Sometimes  the  fact  will  appear  that  the  officer  taking  the 
acknowledgment  was  authorized  to  take  proof  of  deeds  but  there 
will  be  nothing  to  show  that  his  certificate  conforms  to  the  law 
of  his  venue,  in  which  case  say : 

Certificate  of  magistracy,  but  not  of  conformity,  by  Jno. 
Smith,  Clerk,  etc. 

In  case  of  foreign  notaries,  and  other  officers,  a  certificate 
of  magistracy  is  usually  required  by  statute,  but  where  the 

68  Callaway  V.  Fash,  50  Mo.  420;  signature  to  the  acknowledgment 
Smith    v.    Garden,    28    Wis.    G85.  is   genuine,   necessarily   implies,    on 

69  Here,    if   desired,    set   out   any  the     part     of     the    clerk,     both     a 
portion   of  the   certificate;    as   that  knowledge  of  the  handwriting   and 
the    officer's    signature    is    genuine,  his  belief  of  its  genuineness:   Wells 
etc.     The    unqualified    and    positive  v.  Atkinson,  24  Mian.  101. 
affirmation    that    the    magistrate's 


260  ABSTRACTS    OF    TITLE. 

notary's  certificate  is  in  conformity  to  local  law,  the  certificate 
of  magistracy  and  conformity  need  not  be  noticed  in  the  ab- 
stract, its  main  office  being  to  cure  defects  of  form.  A  com- 
missioner appointed  by  the  Governor  of  a  State  to  take  acknowl- 
edgments of  deeds  in  another  State,  is  an  officer  of  the  State 
from  which  he  derives  his  appointment.  The  courts  of  that 
State  are  bound  to  take  judicial  notice  of  his  acts,  and  these 
require  no  other  authentication  than  his  seal  of  office.70  His 
certificate,  however,  should  be  in  conformity  with  the  laws  of 
the  State  from  which  he  derives  his  authority.71 

A  properly  drawn  notarial  certificate  will  always  disclose 
the  officer's  jurisdiction,  and  where  a  defect  of  this  kind  oc- 
curs, as  where  the  officer  fails  to  state  that  he  is  a  ^Notary 
Public  "  in  and  for  the  county  and  State  aforesaid,"  it  should 
be  shown  by  a  brief  note,  thus : 

Certificate  of  acknowledgment  by  "  Henry  Brown,  Notary 
Public,"  whose  venue  is,  "  State  of  Illinois,  County  of  Cook." 
Jurisdiction  of  officer  not  otherwise  shown. 

§  211.  Repugnancy.  Where  there  is  a  disagreement  or 
inconsistency  between  two  or  more  clauses  of  a  deed,  it  is  a 
general  rule  that  the  earlier  clause  will  prevail  if  the  incon- 
sistency be  not  so  great  as  to  avoid  the  instrument  for  uncer- 
tainty.72 This  rule  is  always  applied  where  an  estate  expressly 
granted  is  followed  by  a  reservation,  exception,  or  condition 
which  destroys  the  grant.73  In  the  matter  of  description, 
where  there  is  a  clear  repugnance,  effect  will  always  be  given 
to  that  which  is  most  definite  and  certain,  and  which  will  carry 
out  the  evident  intention  of  the  parties.74 

70  Smith  v.  Van  Guilder,  26  Ark.  73  Cutler  v.  Tufts,  3  Pick.  277; 
527.  Pynchon    v.    Stems,    11    Met.    304; 

71  Brannon  v.  Brannon,  2  Disney  Rines  v.  Mansfield,  96  Mo.  394. 
(Ohio),   224.  74  Wade   v.   Deray,    50   Cal.    376; 

72  Tubbs  v.  Gatewood,  26  Ark.  Kruse  v.  Wilson,  79  111.  233 ;  Bas- 
128;  Green  Bay,  etc.,  Co.  v.  Hewitt,  sett  v.  Budlong,   77  Mich.  338. 

55  Wis.  96. 


CHAPTER  XV. 


CONVEYANCES    BY    INDIVIDUALS. 


§  212. 

Deeds  in  general. 

§  229. 

213. 

Deeds  poll  and  indentures. 

230. 

214. 

Construction  of  deeds. 

215. 

Validity. 

231. 

216. 

Warranty   deeds. 

217. 

Abstract  of  warranty  deeds. 

232. 

218. 

Notes. 

219. 

Quitclaim   deeds. 

233. 

220. 

Abstract  of  quitclaim  deeds. 

221. 

Effect  of  covenants  in  quit- 
claim   deeds. 

234. 

222. 

Special  warranties. 

235. 

223. 

Statutory  forms. 

224. 

Common  law  conveyances. 

236. 

225. 

Release. 

237. 

226. 

Confirmation. 

238. 

227. 

Surrender. 

239. 

228. 

Assignment. 

Conveyances  in  futuro. 

Conveyances    of   special    in- 
terests and  estates. 

Continued    —    Illustrations 
of  special  cases. 

Restrictive   and   conditional 
conveyances. 

Prohibited       conveyances  — 
Adverse  seizin. 

Continued  —  Fraudulent 
conveyances. 

Conveyances   subject  to   in- 
cumbrance. 

Dedication  by  deed. 

Resulting  trusts. 

Re-records    and    duplicates. 

Corrected  Records. 


§  212.  Deeds  in  General.  In  the  United  States,  the  an- 
cient technical  principles  relating  to  common  law  conveyances 
seem  to  be  in  a  great  measure  inapplicable.  The  tendency 
of  modern  legislation,  as  well  as  the  current  of  later  decisions, 
has  been  to  simplify  the  forms  of  conveyance  and  to  reduce 
the  number  of  the  methods.  The  deeds  commonly  in  use,  and 
by  which  the  great  bulk  of  real  estate  transactions  between 
individuals  is  effected,  are,  the  deed  of  bargain  and  sale,  pop- 
ularly known  as  "  Warranty  Deed "  and  the  deed  of  release 
and  quitclaim,  known  as  "  Quitclaim  Deed."  To  these  may 
be  added  a  third,  a  deed  adapted  from  the  old  deed  of  non- 
claim,  combining  qualities  peculiar  to  both  of  the  other  classes, 
and  called  "Special  Warranty   Deed,"1    wherein  the  grantor 

1  The  above  enumeration,  though  forms,  is  in  reality  but  one  kind  of 
the     conveyances    assume    different       deed,  to  wit,  a  bargain  and  sale. 

261 


262  ABSTRACTS    OF    TITLE. 

covenants  only  against  his  own  acts  and  those  who  claim  under 
under  him,  and  not  against  adverse  or  paramount  titles.  They 
are  all  effectual  to  convey  the  fee,  or  whatever  interest  the 
grantor  may  possess,  and  will  always  do  so  unless  a  contrary 
intention  is  expressly  manifest  or  clearly  deducible  by  impli- 
cation. 

§  213.  Deeds  Poll  and  Indentures.  The  operative  in- 
struments for  the  conveyance  of  land  were  formerly  classed  as 
"  deeds  poll "  and  "  indentures,"  the  former  being  where  an 
obligation  was  incurred,  or  an  estate  conveyed,  by  only  one 
of  the  parties  to  the  transaction,  the  other  being  a  mere  re- 
cipient; the  latter,  on  the  other  hand,  contained  mutual  trans- 
fers or  covenants,  the  one  in  exchange  for  the  other.  A  deed 
poll  was  a  single  instrument,  signed  by  one  party,  and  delivered 
to  the  other;  an  indenture  consisted  of  two  or  more  parts,  of 
the  same  tenor,  executed  in  duplicate  by  both  parties,  and  inter- 
changeably delivered  by  one  to  the  other.  The  name  "  inden- 
ture," is  said  to  have  originated  from  the  practice  of  writing 
both  parts  of  the  agreement  upon  one  parchment,  and  then 
cutting  them  asunder  in  acute  angles,2  the  parts  at  the  place 
of  separation  resembling  teeth.  Such  a  deed  was  said  to  be 
"  indented."  The  phrase  "  this  indenture "  still  forms  the 
initial  to  deeds  of  bargain  and  sale,  though  such  conveyances 
are  in  effect  deeds  poll,  and  affords  another  instance  where 
common-law  forms  of  expression  have  been  retained  after  their 
original  meaning  and  technical  significance  have  been  lost.3 

§  214.  Construction  and  Effect  of  Deeds.  The  general 
construction  of  deeds   is   favorable  to  their  validity,   and  al- 

2  2  Hill  Abridgment,  280;  2  Indenture,  on  the  other  hand,  is 
Wash.  Eeal  Prop.  587;  2  Shars-  always  in  the  third  person,  and 
wood's  Black  Com.  294.  commences     "  This     Indenture    wit- 

3  Adaptations  of  both  forms  are  nesseth  "  that  the  grantor  has  con- 
still  in  use.  The  deed  poll  always  veyed,  etc.  In  powers  of  attorney 
commences  with  a  declaration  to  all  and  similar  documents  the  deed 
persons,  calling  upon  them  to  notice  poll  form  is  always  preserved.  In 
the  act  of  the  grantor.  The  phrase  leases,  dual  agreements,  and  instru- 
reads,  "  Know  all  men  by  these  ments  of  a  bilateral  character  the 
presents,"  etc.,  and  the  grant  is  indenture  is  still  generally  em- 
usually    in    the    first    person.     The  ployed. 


CONVEYANCES   BY   INDIVIDUALS.  263 

though  courts  can  not  give  effect  to  an  instrument  so  as  to  do 
violence  to  the  rules  of  language  or  of  law,  they  will  yet  so  con- 
strue it  as  to  bring  it  as  near  to  the  actual  meaning  of  the 
parties,  as  the  words  they  have  seen  fit  to  employ,  and  the  rules 
of  law  will  admit.4  The  intention  of  the  parties,  when  it  can 
be  ascertained,  will  always  control,  if  by  law  it  may,  and  as  be- 
tween them  the  deed  is  always  construed  most  strongly  against 
the  grantor.5  When  the  words  of  a  deed  are  so  uncertain  that 
the  intention  of  the  parties  can  not  be  discovered,  the  deed  is 
void.6  In  the  exposition  of  deeds,  the  construction  must  be 
upon  the  whole  instrument,  and  with  a  view  to  give  every  part 
of  it  meaning  and  effect,  and  the  intent  when  apparent,  and 
not  repugnant  to  any  rule  of  law,  will  control  technical  terms.7 
Where  a  deed  purports  to  convey  all  the  interest  and  title  of 
the  grantor,  effect  will  be  given  to  it  accordingly,  although  he 
actually  held  a  greater  interest  than  he,  at  the  time  of  convey- 
ance, supposed  he  owned,  for  a  party  is  bound  to  know  enough 
about  his  title,  as  not,  by  his  want  of  knowledge,  to  mislead  a 
purchaser.8 

§  215.  Validity.  In  all  works  treating  on  conveyancing, 
or  the  alienation  of  real  property,  the  subject  of  validity  of 
conveyances  of  land,  as  affected  by  extraneous  evidence,  rightly 
occupies  a  prominent  position,  yet  in  a  work  of  this  character 
it  can  receive  little  more  than  passing  notice.  The  principal 
facts  which  tend  to  invalidate  deeds,  aside  from  defects  of  form 
or  substance,  which  appear  from  inspection,  are:  incapacity 
of  the  parties ;  inadequacy  of  consideration ;  fraud  in  the  in- 
ception ;  and  undue  influences  or  duress  in  the  procurement ; 
all  of  which  must,  from  their  several  natures,  be  shown  by 

4  Calling  v.  Lavalle,  44  Vt.  230;  6  Rollin  v.  Pickett,  2  Hill.  522; 
Churchill  v.  Reamer,  8  Bush  (Ky. ),  Jackson  v.  Rosvelt,  13  Johns,  97; 
256;    Peckham   v.  Haddock,   36   111.       Peoria  v.  Darst,  101  111.  671. 

38;  Hadden  v.  Shoutz,  15  111.  581;  7  Callins  v.  Lavalle,  44  Vt.  230; 

Jackson  v.  Meyers,  3  Johns.  395.  Saunders  v.  Hanes5  44  N.  Y.  353. 

5  City    of    Alton    v.    Transporta-  8  Thomas  v.  Chicago,  55  111.  403. 
tion  Co.,  12  111.  38;  Jackson  v.  Hud- 
son, 3  Johns.  375. 


264  AfcSTfiACTS   OF   TITLE. 

evidence  aliunde,  the  deed  upon  its  face  being  regular  and  the 
formalities  of  law  having  been  fully  complied  with.9 

There  is  an  important  distinction  between  void  and  voidable 
deeds,  although  the  terms  are  often  used  indiscriminately.  A 
deed  absolutely  void  passes  no  title,  while  a  deed  which  is  void- 
able merely  may  be  the  foundation  of  an  unassailable  title  in 
the  hands  of  a  subsequent  purchaser  without  notice.10  The 
term  "  void  "  is  seldom,  unless  in  a  very  clear  case,  to  be  re- 
garded as  implying  a  complete  nullity ;  but  it  is,  in  a  legal 
sense,  subject  to  large  qualifications  in  view  of  all  the  circum- 
stances calling  for  its  application  and  the  rights  and  interests 
to  be  affected  in  a  given  case.11  Statutes  not  infrequently 
declare  acts  void,  which  the  tenor  of  their  prov:sions  necessarily 
makes  voidable  only.  Deeds  are  seldom  absolutely  void,  though 
they  may  be  relatively  so,  and  incapable  of  legal  effect  as  be- 
tween the  parties,  but  in  regard  to  the  consequences  to  third 
persons  the  distinction  is  highly  important.12  Matters  in  pais 
are  seldom  known  to  the  examining  counsel,  who  is  justified  in 
pronouncing  that  a  marketable  title  which  appears  so  of  record, 
and  which  in  fact  is  such,  until  assailed  or  set  aside  by  com- 
petent authority.  As  respects  subsequent  purchasers  without 
notice,  the  right  or  title  conferred  by  a  conveyance  is  to  be  de- 
termined by  the  instrument  of  transfer  as  recorded,  and  not  by 
facts  in  pais  or  other  instruments  not  recorded.13 

Latent  ambiguities  and  defects  do  not  usually  avoid  a  con- 
veyance, and  a  deed  intended  to  correct  an  error  in  a  former 
deed  by  the  same  grantor,  will  cure  such  defect,  and  take  effect 

9  A    purchaser    of    land    from    a  ll  Brown    v.    Brown,    50    N.    H. 

prior  bona  fide  holder  who  acquired  53S;    Kearney   v.    Vaughn,    50   Mo. 

the    legal    title,    as    shown    by    the  284. 

records,    for    a   valuable    considera-  12  Bromly   v.    Goodrich,    40    Wis. 

tion,    without    notice    of    any    out-  131;    Seylar  v.    Carson,   69   Pa.   St. 

standing    equity,    will    be    protected  81 ;     Van    Schaac    v.     Robbins,    36 

against  such  equity,  even  though  he  Iowa,  201;   Kearney  v.  Vaughn,  50 

himself  had  notice  thereof:     Peck  v.  Mo.  284. 
Arehart,   95   111.    113.  13  Miller  v.  Ware,  31  Iowa,  524; 

io  Crocker   v.    Ballangee,    6    Wis.  Peck  v.  Arehart,  95  111.  113. 
645. 


CONVEYANCES    BY    INDIVIDUALS.  265 

by  relation  as  of  the  time  when  the  erroneous  deed  was  given, 
the  same  as  if  it  had  been  reformed  in  equity.14 

§  216.  Warranty  Deeds.  The  most  familiar  form  of 
conveyance  known  to  our  law  is  the  deed  of  bargain  and  sale 
technically  called  a  warranty  deed.  The  legal  import  of  a 
deed  of  this  character  is  that  of  absolute  conveyance  of  the  in- 
terest intended  and  that  there  is  no  resulting  trust  in  the 
grantor,  who  is  estopped  from  ever  after. denying  its  execution 
for  the  uses  and  purposes  mentioned  in  it,15  while  its  name  is 
derived  from  the  personal  covenants  which  follow  the  haben- 
dum. 

The  operative  words  of  conveyance  in  this  class  of  deeds, 
are  "  grant,  bargain  and  sell,"  which  in  many  States  are  al- 
lowed to  operate  as  covenants  of  seizin,  freedom  from  incum- 
brances, and  quiet  enjoyment,10  unless  their  statutory  effect  is 
rendered  nugatory  or  limited  by  express  words  contained  in 
such  deed.17  It  is  still  a  common  practice  for  the  conveyancer 
to  insert  in  warranty  deeds,  as  well  as  in  other  classes  of  con- 
veyances, all  the  operative  terms  used  in  transferring  land ;  as, 
"  grant,  bargain,  sell,  remise,  release,  alien,  convey  and  con- 
firm," though  their  presence,  save  where  they  imply  covenants, 
is  no  longer  necessary.  This  was  formerly  done,  that  the  in- 
strument might  take  effect  in  one  way  if  not  in  another,  and 
in  such  case  the  party  receiving  the  deed  had  his  election  which 
way  to  take  it.  Thus  according  to  the  words  used,  he  might 
claim  either  by  grant,  feoffment,  gift,  lease,  confirmation  or 
surrender.  The  majority  of  the  foregoing  words  of  grant  are 
now  superfluous,  except  that  in  a  few  States  the  words  "  grant, 
bargain  and  sell "  must,  under  the  statute,  be  construed  as  ex- 
press or  implied  covenants,  for  seizin,  against  incumbrances, 
etc.,18  yet  the  rule  that  the  law  of  the  State  where  the  land  lies 
governs  the  interpretation  of  the  deed,  does  not  warrant  the 

14  Hutchinson  v.  R.  R.  Co.,  41  235;  Hawk  r.  McCullough,  21  111. 
Wis.  541.  220. 

15  Kimball  v.  Walker,  30  II!.  482.  17  Finley  v.  Steele,  23  111.  50. 

16  Prettyman    v.    Wilkey,    19    111.  is  Brodie    v.    Watkins,    31     Ark. 

319;    Finley  v.  Steele,  23  111.  56. 


266  ABSTRACTS    OF    TITLE. 

implication  of  personal  covenants  not  authorized  by  the  law  of 
the  State  where  the  deed  was  made.  The  question,  whether 
the  words  shall  import  covenants,  must  be  decided  by  the  law 
of  the  latter  State.19 

It  must  be  understood  that  some  words  evidencing  an  in- 
tention to  transfer  an  estate  must  appear,  but  the  conveyancer 
has  a  choice  of  a  number,  and  the  word  "  convey,"  which  is 
most  in  use,  fully  expresses  the  intent,  and  is  effectual  for  all 
purposes.20 

§  217.  Abstract  of  Warranty  Deed.  In  preparing  an 
abridgment  of  an  ordinary  deed  of  bargain  and  sale,  when 
drawn  in  the  usual  manner  and  unincumbered  by  any  unusual 
conditions  or  stipulations,  only  the  salient  features  are  neces- 
sary, it  being  understood  that  the  deed  is  in  form,  and  that  all 
the  essential  requisites  have  been  complied  with.  Were  this 
otherwise  the  abstract  would  become  unnecessarily  bulky  and 
cumbersome,  and  defects  when  shown  would  be  less  readily  de- 
tected. This  is  the  universal  custom  of  abstract  makers,  and 
the  method  seems  to  have  met  the  approbation  of  the  legal 
profession.  An  ordinary  deed  of  conveyance  is  sufficiently 
presented  as  follows : 


Joh?i  Smith,  and 
Mary  B.,  his  wife, 

to 
Thomas  L.  Jones. 


Warranty  Deed. 
Dated  June  1,  1882. 
Recorded  June  28,  1882. 
Volume  28,  page  10. 
Consideration  $1,000.00. 


Conveys  land  in  Racine  county,  Wis.,  described  as  lot  four- 
teen, of  block  twenty-eight,  of  RoswelVs  Addition  to  the  village 
of  Emmetsburgh,  being  a  part  of  the  northwest  quarter  of 
section  thirty-six,  town  two  north,  range  fourteen,  east  of  the 
third  principal  meridian. 

Acknowledged  June  1,  1882.21 

19  Bethel  v.  Bethel,  54  Ind.  428.  19  N.  H.  487;  Bridge  v.  Wellington, 

20  An  extremely  simple  form  of  a       1   Mass.  219. 

deed  in  fee  is  given  in  4  Kent  Com.  21  In  the  abstract  of  ancient  con- 

461;   and  see  Hutchins  v.  Carleton,       veyances    it    may    be    necessary    to 


CONVEYANCES    BY    INDIVIDUALS.  267 

The  foregoing  example  pre-supposes  good  work  on  the  part 
of  conveyancer  and  examiner,  and  that  the  instrument  as  shown 
of  record  is  regular  in  form  and  properly  executed  and  acknowl- 
edged. It  further  carries  the  presumption  that  no  recitals  ap- 
pear, other  than  those  common  to  all  deeds  of  bargain  and  sale, 
and  that  all  covenants  necessary  for  the  proper  assurance  of  the 
estate  conveyed  are  inserted.  Should  the  examiner  desire,  how- 
ever, to  note  the  covenants,  he  may  add : 

Full  covenants  of  seizin  and  warranty. 

Defects  of  form  or  substance,  occurring  in  any  part  of  the 
deed,  must  be  suitably  noticed  as  suggested  in  the  preceding 
chapter.  In  ancient  deeds,  where  the  premises  are  inperfect 
by  reason  of  omission  of  words  of  inheritance,  the  habendum 
may  be  shown  thus : 

Habendum  to  heirs  and  assigns. 

§  218.  Notes.  The  matter  of  examiner's  notes  has  al- 
ready been  discussed.  These  should  be  appended,  whenever 
practicable,  immediately  after  the  deed  to  which  they  allude; 
as,  in  the  foregoing  example,  if  the  abstract  is  of  the  original 
instrument  and  not  of  the  record  thereof,  a  mention  of  the  fact 
immediately  follows  same,  thus : 

Note. —  The   particulars   of   the   foregoing  deed   taleen  front 
the  original  instrument. 

§  219.  Quitclaim  Deeds.  A  quitclaim  deed  is  as  effectual 
for  transferring  the  title  to  real  estate  as  a  deed  of  bargain 
and  sale,22  and  passes  to  the  grantee  all  the  present  interest 

show  a  trifle  more  than  is  here  of  fifty  years,  their  insertion  or 
noted.  The  words  of  inheritance  omission  in  ancient  grants  will 
in  the  premises  and  habendum  have  but  little  effect  on  the  titles 
may  be  material  in  determining  of  to-day2  which,  though  defective 
the  nature  of  the  estate  conveyed,  originally,  have  been  perfected  by 
but  as  the  necessity  of  the  word  the  effluxion  of  time., 
"heirs"  or  other  words  of  inherit-  22  Morgan  v.  Clayton,  61  111.  35; 
ance  has  been  dispensed  with  in  a  Rowe  v.  Pecker,  30  Ind.  154;  Pin- 
majority  of  the  States  for  upward  gree  v.  Watkins,  15  Vt.  479. 


268  ABSTRACTS   OF    TITLE. 

or  estate  of  the  grantor,23  together  with  the  covenants  run- 
ning with  the  land,  unless  there  are  special  words  limiting 
and  restricting  the  conveyance.24 

But  while  a  quitclaim  deed  is  as  effectual  to  pass  title  as  a 
deed  of  bargain  and  sale,  still,  like  all  other  contracts,  it  must 
he  expounded  and  enforced  according  to  the  intention  of  the 
parties  as  gathered  from  the  instrument,  and  if  the  words  used 
indicate  a  clear  intention  to  pass  only  such  land  or  interests 
as  the  grantor  then  owns,  lands  embraced  in  a  prior  valid  deed 
have  been  held  to  be  reserved  from  its  operation,  even  though 
such  prior  deed  remains  unrecorded.25  It  is  a  rule,  however, 
of  general  application,  that  a  quitclaim  deed,  when  recorded, 
takes  precedence  of  a  prior  unrecorded  warranty  deed  from  the 
same  grantor,  the  purchaser  under  the  quitclaim  having  no 
notice  of  the  prior  deed,  and  there  being  no  words  therein  sug- 
gestive of  an  earlier  conveyance.26 

A  quitclaim  deed,  though  effectual  as  a  present  conveyance, 
when  unaccompanied  by  warranty  will  not  operate  to  carry  a 
subsequently  acquired  title,27  nor  can  one  who  takes  under 
such  a  deed  be  regarded,  in  all  respects,  as  a  bona  fide  pur- 
chaser without  notice  of  outstanding  titles  and  equities.28 
The  authorities  are  not  agreed,  however,  with  respect  to  the 
character  to  be  accorded  to  a  purchaser  by  quitclaim.  As  a  gen- 
eral proposition  he  obtains  just  such  title  as  the  vendor  had,  and 
the  land  in  his  hands  remains  subject  to  all  the  equities  at- 
taching to  it  in  the  hands  of  the  vendor,  even  though  they  may 

23  Nicholson  v.  Caress,  45  Ind.  Kan.  59 ;  and  see,  Hope  v.  Blair, 
479;   Carter  v.  Wise,  39  Tex.   273;       105  Mo.  85. 

Carpentier    v.    Williamson,    25    Cal.  27  Comstoek    v.    Smith,    13    Pick. 

158.  116;    Jackson   v.    Winslow,   9    Cow. 

24  Brady  v.  Spruck,  27  111.  478;  '13;  Harriman  v.  Gray.  49  Me.  538; 
Marden  v.  Chase,  32  Me.  329.  Kinsman  v.  Loomis,    11    Ohio,  475; 

25  Hamilton   v.    Doolittle,    37    111.  Miller  v.  Ewing,  6  Cush.  34. 

473.  28  Stoffel    v.    Schroeder,    62    Mo. 

26  Brown  v.  Coal  Oil  Co.,  97  111.  147;  Carter  v.  Wise,  39  Tex.  273; 
214;  Graff  v.  Middleton,  43  Cal.  Springer  v.  Brattle,  46  Iowa,  688; 
341;  Marshall  v.  Roberts,  18  Minn.  Oliver  v.  Piatt,  3  How.  (U.  S.)  363. 
405;     Merrill     v.     Hutchinson,     45 


CONVEYANCES    BY    INDIVIDUALS.  269 

be  unknown  to  such  purchaser.29  But  it  would  seem  this  harsh 
doctrine  is  not  applicable  in  all  cases.  It  prevails  in  settling 
conflicting  titles,  and  is  intended  to  protect  equities  as  against 
those  charged  with  notice  of  their  existence,  but  is  never  in- 
voked to  protect  a  fraudulent  grantor  who,  by  false  representa- 
tions, induces  a  confiding  purchaser  to  believe  that  he  acquires 
an  indefeasible  title  under  a  quitclaim  deed.30  In  the  ab- 
sence of  fraud,  however,  a  party  accepting  a  quitclaim  deed 
takes  the  risk  of  the  title,31  for  where  a  person  purchases  of  an- 
other who  is  willing  to  give  only  a  quitclaim,  he  may  prop- 
erly enough  be  regarded  as  bound  to  inquire  and  ascertain 
at  his  peril  what  outstanding  equities  exist,  if  any.  His 
grantor  virtually  declares  to  him  that  he  will  not  warrant  the 
title  even  as  against  himself,  and  it  may  be  presumed  that  the 
purchase  price  is  fixed  accordingly.32 

It  is  generally  conceded,  even  in  those  States  which  hold  the 
strongest  against  quitclaims,  that  the  mere  form  of  a  deed  will 
not  conclude  the  parties  thereto  nor  prevent  a  vendee  there- 
under from  claiming  the  protection  given  to  a  purchaser  in 
good  faith.  At  most,  a  deed  in  this  form  is  simply  a  warning; 
it  imposes  the  duty  of  inquiry,  and  it  charges  the  purchaser 
with  notice  of  such  outstanding  equities  or  interests  as  he  might 
have  discovered  by  the  exercise  of  reasonable  diligence.  But 
where  the  vendee  has  paid  a  fair  consideration,  has  duly  exam- 
ined the  public  records,  and  finds  what  appears  to  be  a  clear 
right  of  ownership  in  the  vendor,  the  preponderating  rule 
seems  to  be,  that  he  will  not  be  affected  by  secret  equities,  liens, 
interests  or  incumbrances  of  which  he  had  no  notice  and  con- 
cerning which  no  inquiry  was  suggested.33 

The  grantee  of  one  holding  under  a  quitclaim,  when  such 
grantee  holds  by  a  warranty  deed,  is  presumed  to  be  a  bona 
fide  purchaser  for  value.     He  is  not  affected  by  the  mere  fact 

28  Mann  v.  Be  t.  (*2  Mo.  491;  May  32  Winkler    v.    Miller,    54    Iowa, 

v.  LeClaire,  11  Wall.   (U.  S.)   217.  476. 

3a  liallf.u  v.  Lucas,  59  Iowa,  22.  33  Merrill  v.  Hutchinson,  45  Kan. 

Si  Botsford  v.  Wilson,  75  111.  132;  59. 
Thorp  v.  Coal  Co.,  48  N.  Y.  253. 


270  ABSTRACTS    OF    TITLE. 

that  ho  derives  title  through  a  quitclaim  deed,  and  will  take 
the  land  free  from  outstanding  equities  of  which  he  had  no 
notice.  It  is  the  policy  of  the  law  that  real  estate  titles  should 
become  matters  of  certainty  as  far  as  possible,  and  as  quit- 
claim deeds  occur  in  the  lives  of  many  titles,  a  different  rule 
than  the  one  above  set  forth  would  tend  to  unsettle  titles,  hin- 
der and  delay  improvements  and  impair  the  selling  value  of 
all  property  so  affected. 

§  220.  Abstract  of  Quitclaim  Deeds.  As  in  the  case  of 
simple  warranty  deeds,  only  the  main  features  of  quitclaim 
deeds  need  be  shown  in  preparing  a  synopsis  of  same.  The 
operative  granting  words  of  deeds  of  this  nature  are  "  remise, 
release,  convey  and  quitclaim;"  but  any  other  words  indicat- 
ing conveyance  will  do  as  well  and  have  the  same  effect.  In 
the  abstract  it  is  not  customary  to  recite  these  words,  but  the 
description  is  prefaced  by  the  simple  word  "  convey,"  the  ex- 
aminer indicating  the  nature  and  legal  inrport  of  the  instru- 
ment by  its  name.  Should  the  deed  contain  the  statutory 
words  which  raise  covenants,  they  then  become  material,  for 
the  instrument  in  effect  becomes  a  warranty  deed,  though  in 
form  a  quitclaim.34  To  raise  a  statutory  covenant  the  very 
words  of  the  statute  must  be  used,35  and  if  only  a  part  of  them 
appear,  as  "  grant,  sell  and  convey,"  the  deed  will  remain  a 
quitclaim.36 

It  is  the  custom  of  conveyancers  to  insert  after  the  words 
of  grant,  a  recital  of  the  estate  or  interest  conveyed ;  as  all 
"  right,  title,  interest,"  etc.,  but  this  is  the  legal,  as  well  as  the 
statutory  effect  of  the  deed,  and  the  omission  or  insertion  of 
such  words  is  immaterial  to  the  deed,  and  consequently  of  no 
importance  to  the  abstract,  except  when  they  clearly  indicate  a 
prior  conveyance,  or  afford  constructive  or  actual  notice  of  ex- 
isting equities.  Where  the  deed  contains  covenants  of  any 
kind,  particularly  of  warranty,   these  words  become  material, 

34DeWolf  V.  Hayden,  34  111.  525.  323;  Frink  v.  Darst,  14  111.  304; 
35Vipond  v.  Hurlbut,  22  111.  226.  Young  v.  Clippinger,  14  Kan.  148. 
36  Whitehall  v.  Gottwal,  3  Penn. 


CONVEYANCES    BY    INDIVIDUALS.  271 

however,  and  in  some  States  they  are  of  controlling  efficacy,37 
as  per  the  succeeding  paragraph. 

§  221.  Effect  of  Covenants  in  Quitclaim  Deeds.  Inas- 
much as  the  particular  granting  words  employed  in  deeds  are 
now  of  comparatively  little  moment,  if  one  conveys  land  with 
a  general  covenant  of  warranty  against  all  lawful  claims  and 
demands,  he  can  not  be  allowed  to  set  up  against  his  grantee, 
or  those  claiming  under  him,  any  title  subsequently  acquired, 
either  by  purchase  or  otherwise,  and  such  new  title  will  inure 
by  the  way  of  estoppel  to  the  use  and  benefit  of  the  grantee, 
his  heirs  and  assigns.38  But  where  the  deed  does  not  on  its 
face  purport  to  convey  an  indefeasible  estate,  but  only  "  the 
right,  title  and  interest "  of  the  grantor,  though  containing 
covenants  of  ownership,  warranty,  etc.,  it  will,  it  seems,  only 
convey  such  interest  in  the  land  as  the  grantor  has  at  the 
date  of  the  deed,39  and  the  covenants  are  to  be  regarded  as 
having  reference  to  and  as  being  qualified  and  limited  by  the 
grant.40  In  a  like  case,  where  the  grantor  agrees  to  warrant 
the  title  conveyed  only  as  against  all  claims  derived  from 
himself,  he  is  understood  to  refer  to  existing  claims  and  in- 
cumbrances, and  not  to  any  title  he  may  afterward  derive 
from  a  stranger.41 

As  quitclaim  deeds  are  usually  drawn,  after  the  words  of 
grant  are  a  number  of  words  limiting  or  defining  the  estate 
conveyed ;  as  "  all  right,  title,  interest,  claim,  demand,"  etc., 
which,  in  what  are  usually  termed  "  straight  "  deeds,  may  be 
disregarded;  but  when  followed  by  covenants,  it  is  advisable 
that  every  part  of  the  instrument  which  tends  to  show  the 
nature  and  extent  of  the  granted  estate  be  set  out,  including 
all  the  operative  parts  of  the  premises  and  the  habendum. 

37  See  Holbrook   v.   Debo,   99    111.  40  Bell  v.  Twilight,  6  Foster   (IS. 

382.  H.),  411;   Rawle  Gov.  for  Tit.  420. 

38Comstock    v.    Smith,    13    Pick.  41  Bogy   v.    Shoab,    13    Mo.    378; 

119.  Gee  v.  Moore,  14  Cal.  474;  Allen  v. 

39  Brown    v.    Jackson,    3    Wheat.  Holton,   20  Pick.   458;    Holbrook   v. 

(U.   S.)    449;    Bowen  v.   Thrall,   28  Debo,  99  111.  372. 
Vt.   382;    Blanchard   v.   Brooks,    12 
Pick.    (Mass.)    47. 


272  ABSTRACTS    OF    TITLE. 

A  distinction  has  been  made  by  some  courts  between  such 
deeds  as  quitclaim  or  release  the  land  itself  and  such  as  merely 
release  whatever  interest  the  grantor  may  have  in  the  land,42 
and  though  the  distinction  does  not  always  seem  to  rest  in 
sound  reason,  yet  where  such  doctrine  obtains,  no  other  safe 
course  is  open  to  the  examiner  than  that  above  indicated,  and 
it  is  immaterial  whether  the  deed  be  one  of  the  quitclaim  or 
non-claim.43 

§  222.  Special  Warranties.  There  is  in  common  use 
in  the  United  States,  though  it  would  seem  to  be  rarely  em- 
ployed in  England,  a  deed  of  conveyance,  with  a  limited 
warranty,  variously  known  as  a  "  special  warranty  "  or  deed 
of  "  non-claim."  In  its  original  form  the  non-claim  was  in- 
serted immediately  after  the  habendum,  without  the  usual 
words  of  covenant  being  prefixed,  and  purported  to  be  a  denial 
of  any  further  rights  in  the  grantor  in  relation  to  the  property 
conveyed,  and  from  which  he  was  "  utterly  debarred  and  for- 
ever excluded  "  by  virtue  of  the  instrument.44  The  covenant 
might  be  general;  but  was  usually  limited  to  the  grantor  and 
tliuse  claiming  under  him.  As  now  framed  it  is  a  limited 
personal  covenant,  not  as  against  paramount  title,  but  only. 
so  far  as  concerns  the  acts  of  the  grantor.  It  is  a  covenant 
of  warranty  to  the  extent  of  its  import,  and  differs  from  a 
general  warranty  only,  in  that  one  is  a  warranty  against  any 
and  all  paramount  titles,  while  the  other  is  against  the  grantor 
himself,  and  all  persons  claiming  by,  through  or  under  him.45 
"  As  a  general  rule,"  says  Eawle,46  "  no  distinction  has  in 
any  way  been  taken  between  such  a  covenant,  and  the  ordinary 
covenant  of  warranty.  Both  are,  in  general,  held  to  have  the 
same  operation  by  way  of  estoppel;  both  equally  possess  the 
capacity  of  running  with  the  land,  and  confer  the  same  rights 

42  See  Holbrook  v.  Debo,  99  111.  45  Holbrook  v.  Debo,  99  111.  372; 
372 ;  Blanchard  v.  Brooks,  12  Pick.  Porter  v.  Sullivan,  7  Gray,  441; 
46.  Lathrop  v.  Snell,  11  dish.  453. 

43  Gibbs  v.  Thayer,  6  Cush.  32.  46  Rawle  on  Cov.  for  Title,  p.  223, 

44  See  Rawle  on  Cov.  for  Title,  p.  3d  Ed. 
223,  3d  Ed. 


CONVEYANCES    BY    INDIVIDUALS.  273 

as  to  a  recovery  in  damages."  47  Such  a  deed,  however,  can 
not  be  extended  to  include  a  general  covenant  of  warranty, 
and,  as  it  contains  no  general  covenants  to  secure  the  title,  an 
aggrieved  party  can  have  no  remedy  under  it  on  the  ground 
of  a  mere  failure  of  title,  provided  there  has  been  no  fraud 
in  the  transaction.48  The  deed  is  shown  in  the  abstract  the 
same  as  a  warranty  deed,  except  that  it  is  called  a  "  special 
warranty."  The  operative  words  of  grant,  if  material,  i.  e., 
if  implying  covenants,  should  be  set  out  and  the  express 
covenants  may  be  noticed  as  follows: 

Grantor  covenants  against  his  own  acts,  and  those  claiming 
~by,  through  or  under  him  only. 

The  legal  effect  of  the  deed  as  a  conveyance  is,  of  course, 
equal  to  a  deed  of  bargain  and  sale  in  any  other  form.  Its 
defects  as  a  conveyance  must  be  noted,  as  in  other  cases,  and 
the  remarks  and  suggestions  heretofore  made  relative  to  deeds 
gnerally  will  apply  to  these  and  all  other  classes,  but,  to  avoid 
prolixity,  will  not  be  further  alluded  to  when  speaking  of  each 
particular  kind. 

§  223.  Statutory  Forms.  While  the  constant  tendency 
of  courts  and  conveyancers  has  been  to  modify  and  reduce  the 
common  law  forms  of  expression  in  conveyances  of  land,  the 
radical  hand  of  the  legislator  has  further  been  felt  of  late 
years  in  the  changes  wrought  in  the  form,  contents  and  effect 
of  deeds  and  kindred  instruments.  Statutory  forms  are  now 
prescribed,  as  brief  and  curt  as  those  they  are  intended  to 
supplant  were  often  long  and  verbose.  The  wisdom  of  these 
forms  has  often  been  doubted,  while  their  poverty  of  lan- 
guage has  not  endeared  them  to  the  conveyancer,  and  as  the 
statute  has  left  their  use  optional  they  have  not  as  yet,  in  some 
localities,  come  into  very  general  use. 

47  The  following  oases  sustain  the  nett  V.  Waller,  23  Til.  97;  Holbrook 

text:  Kimball  v.  Blaisdell,  5  N.  TT.  v.  Dobo,  90  111.  372. 
533;   Gibbs  v.  Thayer,  6  Cush.   33;  48  Buckner  v.  Street,  15  Fed.  Rep. 

Claunch  v.  Allen,  12  Ala.  1G3;  Ben-  365. 


274  ABSTRACTS    OF    TITLE. 

The  operative  words  of  statutory  deeds  purporting  to  con- 
vey the  fee,  are  "  convey  and  warrant,"  which  words  have 
also  the  effect  of  express  covenants  of  seizin,  good  right  to 
convey,  freedom  from  incumbrances,  peaceable  possession  and 
warranty  of  title.  Deeds  made  in  conformity  to  statute  have 
all  the  force  and  effect  of  covenants  that  are  usually  contained 
in  the  common  law  deeds.  All  the  covenants  mentioned  in 
the  statute  are  to  be  regarded  and  treated  as  though  they  were 
incorporated  in  the  deed,  of  which  they  constitute  a  part  as 
effectually  as  if  they  were  written  therein.49  The  operative 
words  of  conveyances  of  naked  interests  are,  "  Convey  and 
quitclaim."  The  operative  words,  in  either  case,  should  al- 
ways be  given  in  the  abstract,  which,  in  other  respects,  will 
not  differ  from  the  ordinary  forms  of  abridgments  already 
shown. 

§  224.  Common  Law  Conveyances.  In  addition  to  the 
deed  of  bargain  and  sale,  which  in  its  three-fold  form  of 
"  warranty,"  "  quitclaim  "  and  "  non-claim  "  has  been  made 
a  statutory  conveyance  in  many  of  the  States,  there  are  a 
number  of  technical  forms  of  conveyance  derived  from  the 
land  and  conveyancing  system  of  Great  Britain  and  which  are 
popularly  known  as  "  common  law  deeds."  They  consist  pri- 
marily of  the  deeds  of  Release,  Confirmation,  Surrender  and 
Assignment.50  These  deeds,  as  originally  employed,  were  all 
highly  technical,  long,  and  verbose.  They  displayed  to  fine 
advantage  those  extremely  complex  but  finely  rounded  sen- 
tences that  so  delighted  the  heart  of  the  conveyancer  of  the 
eighteenth  century  and  furnished  so  much  food  for  disquisi- 

49  Carver  v.  Louthain,  38  Ind.  Defeasance;  and  five  conveyances 
530;  Kent  v.  Cantrall,  44  Ind.  452;  derived  from  the  statute  of  uses, 
Lehndorf  v.  Cope,  122  111.  317.  to   wit:     Covenant  to   stand   seized 

50  The  elementary  writers  classify  to  uses;  bargain  and  sale;  lease 
common  law  deeds  as  follows:  Five  and  release;  deed  to  lead  or  de- 
original  conveyances,  to  wit:  Feoff-  clare  the  uses  of  other  more  direct 
ment,  Gift,  Rent,  Lease,  Exchange  conveyances;  and  deeds  of  revoca- 
and  Partition;  five  derivative  con-  tion  of  uses:  Willard,  Conveyanc- 
veyances,  to  wit:  Release,  confir-  ing,  419;  3  Wash.  Real  Prop., 
mation,  Surrender,  Assignment  and  Chap.   5. 


CONVEYANCES    BY    INDIVIDUALS.  275 

tion  and  disputation  in  construing  estates  under  the  compli- 
cated English  land  tenures.  In  the  United  States  they  have 
lost  somewhat  of  their  redundancy,  though  there  are  not  want- 
ing to-day  many  forms  needlessly  long  and  uselessly  prolix, 
while  the  difference  in  our  land  system,  and  estates  there- 
under, has  robbed  them  of  much  of  their  original  significance. 
There  now  exist  but  few  estates  that  can  not  be  adequately 
conveyed  by  deed  of  bargain  and  sale,  and  in  a  majority  of 
instances  a  "  quitclaim  '*  deed  will  accomplish  all  that  was 
formerly  sought  through  the  media  of  the  deeds  above  enumer- 
ated. 

§  225.  Release.  The  term  "  release,"  in  its  popular  and 
limited  signification,  is  now  used  to  denote  the  instrument 
whereby  the  interest  conveyed  by  a  mortgage  is  reconveyed 
to  the  owner  of  the  fee,  and  it  is  also  used  generally  to  desig- 
nate the  conveyance  of  a  right  of  any  kind  to  a  person  in 
possession.  In  England,  it  obtains  in  a  four-fold  form,  and 
is  one  of  the  most  important  of  the  common  law  forms  of 
conveyance.51  In  the  United  States,  the  technical  principles 
relating  to  deeds  of  this  character  are  wholly,  or  in  a  great 
measure,  inapplicable,  while  the  conveyance  which  corresponds 
to  a  release  at  common  law,  is  the  popular  quitclaim  deed,  the 
operative  words  being  the  same  in  both  deeds.  If  a  release 
is  used  it  is  generally  regarded  as  a  substantive  mode  of 
conveyance.52 

Where  a  deed  remising  and  releasing  lands  contains  a  cove- 
nant of  warranty  of  title,  either  general,  or  simply  as  against 
the  claims  of  all  persons  claiming  under  the  grantor  only,  and 
particularly  if  the  habendum  be  to  the  grantee,  his  heirs, 
etc.,  it  will  not  be  a  simple  release,  but  a  conveyance  of  the 

51  Under   the    English    system   of  of  uses  puts  the  lessee  or  bargainee 

conveyancing,     releases     are     exten-  in    possession,    and    being    thus    in 

sively  employed  as  methods  of  eon-  possession,   although   by  a  mere  fic- 

veyanee   of   estates    in    fee.     But    in  tion,    the    release   operating   by    way 

order  to  give  effect  to  a  deed  of  re-  of  enlargement  of  the  estate,   is  ef- 

lease,  it  is  first  necessary  1o  execute  feetual  to  transfer  the  entire  title. 
a  lease    (or  bargain  and   sale   for  a  52  Hall's     Lessee     v.    '  Ashby,     9 

year)   which  by  force  of  the  statute  Ohio,  96. 


276  ABSTRACTS    OF    TITLE. 

fee,  and  a  title  subsequently  acquired  by  the  grantor  will 
inure  the  grantee,  unless  it  is  derived  from  a  sale  under  an 
incumbrance  assumed  by  the  grantee.53 

§  226.  Confirmation.  The  subject  of  confirmation  has 
been  several  times  alluded  to  in  the  course  of  this  work,  but 
mainly  in  treating  of  confirmations  by  the  government  of 
previously  existing  but  inchoate  rights  to  what  would  other- 
wise be  public  land.  Deeds  of  confirmation  are  also  in  use 
among  individuals,  and  is  that  species  of  conveyance  whereby 
an  existing  right  or  voidable  estate  is  made  sure  and  unavoid- 
able, or  where  a  particular  interest  is  increased.  The  appro- 
priate technical  words  of  confirmation  are  "  ratify,  approve 
and  confirm,"  but  "  grant  and  convey  "  or  similar  terms  will 
have  the  same  effect. 

Deeds  of  confirmation  are  not  in  general  use,  as  a  "  quit- 
claim "  is  effective  for  almost  every  purpose  which  might  be 
accomplished  by  the  former.  Frequently,  however,  recitals 
in  deeds  show  that  they  were  given  in  ratification  or  con- 
firmation of  previous  acts  or  to  correct  errors,  irregularities 
or  infirmities  in  former  deeds,  in  which  event  they  take  effect 
by  relation  as  of  the  date  of  the  former  act  or  deed,  and  the 
confirmatory  words  become  material  to  interpret  and  explain 
the  undisclosed  intention  or  correct  the  irregularity  of  the 
former  deed.  In  such  case  the  abstract  should  briefly  set 
out  the  confirmatory  particulars,  as : 

This  deed  is  given,  it  is  stated,  to  correct  an  error  in  a 
former  deed  from  the  same  parties,  dated  June  10,  1900, 
wherein  the  land  conveyed  ivas  erroneously  described  as  being 
located  in  Section  Ten. 

§  227.  Surrender.  A  surrender  is  defined  as  the  yielding 
up  of  an  estate  for  life  or  years  to  him  who  has  an  immediate 
estate  in  reversion  or  remainder,  the  lesser  estate  being  merged 
in  the  greater  by  mutual  agreement,54  and  the  term  is  applied 
both  to  the  act  and  the  instrument  by  which  it  is  accom- 
plished.    It  is  directly  opposite  in  its  nature  to  release,  which 

53  People  ex   rel.    Weber   v.   Her-  54  2   Boil.    Law   Diet.    573 ;    Coke 

bel,  96  111.  384.  Litt.  337b. 


CONVEYANCES    BY    INDIVIDUALS.  Z  i  t 

technically  operates  by  the  greater  estate  descending  upon  the 
lesser.  The  operative  words  of  a  conveyance  of  this  nature, 
are  "  surrender  and  yield  up,"  but  any  form  of  words  that 
indicates  the  intention  of  the  parties  will  serve  the  same  pur- 
pose, while  a  surrender  is  always  implied  when  an  estate  in- 
compatible with  the  existing  estate  is  accepted. 

Though  books  on  conveyancing  still  continue  to  give  ample 
forms  for  deeds  of  surrender,  the  quitclaim  deed  in  common 
use  has  taken  its  place  for  most  purposes,  but  it  would  seem 
that  this  is  still  the  proper  instrument  for  the  relinquishment 
of  leasehold  interests,  dower,  etc.  In  deeds  of  surrender  the 
special  matter  of  inducement  usually  precedes  the  operative 
part  of  the  deed ;  as  in  case  of  leasehold,  a  recital  of  the  lease, 
etc.,  and  an  abridgment  of  this  matter  should  appear  in  the 
abstract.  This,  and  the  surrender  clause,  constitute  the  es- 
sential distinctive  features.  An  example  is  given  of  a  surren- 
der of  a  life  estate: 


William  E.   Charting 
to 

Thomas  L.  Charming, 
only  son  and  heir  apparent  of 
said  William  E.  Channing. 


Surrender, 

Dated,  etc., 
*         *         * 


Recites    that    [here    set    out 
briefly    the    matter    of    induce- 
ment,  which  would  be,   in  this 
case,  the  instrument  conveying  the  life  estate  to  the  father  and 
the  remainder  to  the  son].     Now  this  Indenture  witnesseth  (it 
is  stated)  that  said  first  party  in  consideration  of  $1.00  grants, 
surrenders  and  yields  up  to  second  party  all  those  certain  lands 
and  tenements   [describing  same]    and  the  estate  for  life,   or 
life  interest  of  said  first  party,  in  and  to  said  premises  men- 
tioned to  be  hereby  granted  and  surrendered,  to  the  intent  that 
same  may  merge  and  become  absolutely  extinguished,  so  that 
said  second  party  may  be  in  the  actual  possession  of  said  prem- 
ises. 

[Note  covenants  if  any.] 

Acknowledgment. 


278  ABSTRACTS    OF    TITLE. 

A  better  idea  of  the  abridgments  of  deeds,  and  other  instru- 
ments presented  in  this  work,  would  be  obtained  if  it  were 
practicable  to  insert  the  original  instruments  in  connection 
therewith.  As  it  is,  the  reader  is  requested  to  compare  same 
with  the  forms  presented  in  any  form  book  and  to  note  where 
language  can  be  eliminated  without  impairing  the  force  of  the 
instrument,  and  where  condensation  and  abbreviation  can  be 
advantageously  employed.  A  deed,  of  the  character  just  con- 
sidered is,  when  drawn  after  the  regulation  pattern,  very  long 
and  technical.  Condensation  in  such  cases  is  an  imperative 
necessity,  while  the  spirit  of  the  original  must  be  preserved. 

§  228.  Assignment.  An  assignment  is  a  mode  of  convey- 
ance applicable  to  any  estate  in  lands  wmatever ;  but  the  term 
is  usually  employed  to  express  the  transfer  of  an  equitable  es- 
tate or  a  leasehold  interest,  and  as  such  will  receive  attention 
in  another  part  of  the  work.  The  operative  words  of  convey- 
ance are  "  assign,  transfer  and  set  over,"  but  any  other  words 
evincing  an  intention  to  make  an  entire  transfer  will  be  suffi- 
cient.55 

An  assignment  by  endorsement  on  a  deed  is  entirely  nuga- 
tory. Such  a  proceeding  might,  perhaps,  vest  in  the  assignee 
a  right  to  the  paper  itself,  but  would  not  affect  the  title  to 
the  land.  At  best,  it  might,  in  equity,  be  considered  as  an 
executory  contract,  on  proof  of  the  facts  connected  with  it, 
and  as  such  entitle  the  assignee  to  a  decree  for  specific  per- 
formance, but  it  would  not  operate  as  a  conveyance  of  the 
legal  title.56 

§  229.  Conveyances  in  Future  At  common  law  an  at- 
tempt to  create  or  convey  a  freehold  or  estate  of  inheritance 
in  futuro  was  a  nullity,  the  nearest  approach  being  a  covenant 
to  stand  seized  to  uses,  and  this  was  only  permissible  when  the 
consideration  was  blood  or  marriage,57  nor  was  it  until  com- 
paratively recent  years  that  such  conveyances  have  been  recog- 

55  2   Hill   Abridg.    318;    4   Cruise  29G.     But  see,  Harlowe  v.  Hudgins, 

Dig.  81.  84  Tex.   107,  where  a  contrary  rule 

50  Lessee  of  Bently  v.  Deforest,  2  is  announced. 
Ohio,  221;  Linker  v.  Long,  64  N.  C.  57  2  Black.  Com.  338;  Jackson  v. 


CONVEYANCES    BY    INDIVIDUALS.  279 

nized  in  the  United  States,  unless  the  estate  had  first  been  fil- 
tered through  the  medium  of  a  trustee.  This  resulted  from  the 
principle  of  the  old  feudal  law,  that  there  must  always  be  a 
known  owner  of  every  freehold  estate,  and  that  the  title  thereto 
should  never  be  in  abeyance.  It  followed,  therefore,  that  a 
freehold  to  commence  in  the  future  could  not  be  conveyed,  for 
the  reason  that  it  would  be  in  abeyance  from  the  time  of  the 
conveyance  until  the  future  estate  of  the  grantee  should  vest. 
Under  the  statute,  however,  a  freehold  estate  in  most,  if  not 
all  of  the  States,  may  be  created  to  commence  in  the  future. 
The  effect  of  such  legislation  has  been  to  abrogate  the  com- 
mon law,  and  the  rule  now  seems  to  be  well  established  that  if 
a  deed  conveys  a  vested  right  to  either  a  present  or  future  en- 
joyment of  the  premises  it  is  valid. 5S 

Conveyances  of  this  kind  will  usually  be  found  to  take  the 
form  of  a  common  deed  of  bargain  and  sale,  with  a  proviso 
restraining  the  grantee  from  using  or  occupying  the  granted 
premises  during  the  life  of  the  grantor,59  or  defining  the  time 
at  which  the  deed  shall  become  effective,  though  in  this  respect 
they  are  variant,  occasionally  partaking  of  the  nature  of  a 
contingent  remainder.  If  otherwise  sufficient  a  deed  of  land 
to  take  effect  at  a  future  time  will  vest  the  fee  in  the  grantee 
according  to  its  terms.60 

In  the  abstract  there  should  be  shown:  the  words  of  grant, 
and  if  material  the  words  of  limitation,  as  tending  to  indicate 
more  fully  the  nature  of  the  granted  estate;  the  proviso  limit- 
ing or  restricting  the  use  of  the  estate  or  explaining  its  scope; 
the  habendum,  with  only  slight  abridgment,  this  being  one  of 

MeKenny,   3    Wend.    233;    Brewster  72  Me.   298;    Shaekleton  v.   Sebree, 

v.    Hardy,    22    Pick.     (Mass.)     380;  86    111.   616;    Kent   v.   Atlantic,    De 

Spaulding  v.  Gregg,  4  Ga.  81.  Laine  Co.,   8    R.    I.    305;    Bohon   v. 

5S  Mattocks    v.    Brown,    103    Pa.  Bohon,  78  Ky.  408. 
St.    16;    Morley   v.    Daniel,    90   Ga.  60  Furgnsen    v.    Mason,    60    Wis. 

650;    Shackelton   v.    Sebree,    S6    111.  377;    McDaniel   v.   Johns,   45   Miss. 

616;    Wilson    v.    Carrico,    140    Ind.  632;  Mitchell  v.  Mitchell,  108  N".  C. 

533.  542;    Owen    v.    Williams,    114    Ind. 

59  See  Chandler  v.  Chandler,  55  179;  White  v.  Hopkins,  80  Ga.  154. 
Cal.  267;  Abbott  v.  Holway,  Adm'r, 


2S0  ABSTRACTS    OF    TITLE. 

the  few  cases  in  which  it  becomes  material  and  important ;  and 
the  covenants,  or  such  of  them  as  may  appear  material.  A 
deed  of  this  character,  taken  from  the  files,  will  serve  more 
fully  to  illustrate  the  matter.  A  grantor  seeks  to  convey  the 
fee,  to  vest  only  in  the  event  of  his  death  before  that  of  the 
grantee,  as  extreme  a  case  as  can  be  well  imagined.  Omitting 
the  preliminary  parts,  which  would  be  in  the  form  already 
shown,  except  that  the  consideration  and  conveying  clauses 
are  set  forth  more  fully,  the  abstract  after  the  description 
would  read: 

Provided  (it  is  stated)  "  that  this  deed  is  not  to  take  effect 
and  operate  as  a  conveyance  until  my  decease,  and  in  case  I 
shall  survive  my  said  wife,  tJtis  deed  is  not  to  be  operative  as 
a  conveyance,  it  being  the  sole  purpose  and  object  of  this  deed 
to  make  a  provision  for  the  support  of  my  said  wife  if  she  shall 
survive  me,  and  if  she  shall  survive  me,  then  and  in  that  event 
only,  this  deed  shall  be  operative  to  convey  to  my  said  wife 
said  premises  in  fee  simple.  Neither  I,  the  grantor,  nor  Clar- 
issa B.  Abbott,  shall  convey  the  above  premises  while  we  both 
live,  without  our  mutual  consent.  If  I,  the  grantor,  shall 
abandon  or  desert  my  said  wife,  then  she  shall  have  the  sole 
use  and  income  and  control  of  said  premises  during  her  life." 

To  have  and  to  hold,  etc.,  "  to  the  said  Clarissa  B.,  if  she 
shall  survive  me,  her  heirs  and  assigns,  to  their  use  and  behoof 
forever" 

Said  grantor  covenants  "  that  I  have  good  right  to  sell  and 
convey  the  same  to  the  said  Clarissa  B.,  if  she  shall  survive  me, 
to  hold  as  aforesaid  at  my  decease,"  and  that  he,  his  heirs,  etc., 
will  warrant  and  defend  the  same  "  to  said  Clarissa  B.  if  she 
shall  survive  me." 

The  foregoing  deed  was  construed  and  declared  a  valid  con- 
veyance in  futuro,  sufficient  to  vest  the  fee  in  the  grantee  on 
the  happening  of  the  contingency  mentioned.61      It  is  doubt- 

61  See,  Abbott  v.  Hoi  way,  admr.,  see,  also,  Brown  v.  Atwater,  25 
72  Me.  298,  a  very  instructive  case;       Minn.  520. 


CONVEYANCES    BY    INDIVIDUALS.  281 

ful,  however,  whether  such  an  instrument  would  be  given  ef- 
fect as  a  deed  in  a  number  of  States.62 

Under  the  statutes  now  in  force  in  a  majority  of  the  States, 
the  owner  of  land  may  convey  in  the  manner  prescribed,  any 
part  or  portion  of  his  estate  therein  as  he  and  his  grantee 
may  agree,  subject  only  to  those  restrictions  which  the  law 
imposes  as  required  by  public  policy,  but  relieved  from  the 
technical  doctrines  which  arose  out  of  ancient  feudal  tenures, 
and  all  the  restrictive  effect  which  they  had  upon  alienations. 
"  The  mere  technicalities  of  ancient  law,"  says  Barrows,  J., 
f  are  dispensed  with  upon  compliance  with  statute  require- 
ments. The  acknowledgment  and  recording  are  accepted  in 
place  of  livery  of  seizin,  and  it  is  competent  to  fix  such  time 
in  the  future  as  the  parties  may  agree  upon  as  the  time  when 
the  estate  of  the  grantee  shall  commence.  No  more  necessity 
for  limiting  one  estate  upon  another,  or  for  having  an  estate, 
of  some  sort,  pass  immediately  to  the  grantee  in  opposition  to 
the  expressed  intention  of  the  parties.  The  feoffment  is  to 
be  regarded  as  taking  place,  and  the  livery  of  seizin  as  occur- 
ring, at  the  time  fixed  in  the  instrument,  and  the  acknowledg- 
ment and  recording  are  to  be  considered  as  giving  the  neces- 
sary publicity  which  was  sought  in  the  ancient  ceremony."  63 

§  230.  Conveyances  of  Special  Interests  and  Qualified 
Estates.  The  terms  "  warranty  "  and  "  quitclaim  "  are  used 
in  preparing  the  synopsis  of  deeds,  only  when  the  instru- 
ments to  which  they  are  applied  purport  to  be  absolute  con- 
veyances of  the  entire  interest  of  the  grantor.  In  the  former 
instance,  when  containing  covenants  which  run  with  the  land ; 
in  the  latter,  when  conveying  but  a  naked  interest,  uncoupled 
with  covenants  or  conditions.  In  both  of  these  cases  the  legal 
import  may  safely  be  determined  by  the  examiner,  who  may 
indicate  same  by  the  name  he  applies  to  the  conveyance;  in 
all  other  cases  he  should  simply  use  the  generic  word  "  deed," 

62  Consult,    Turner    v.    Scott,    51  63  Abbott   v.    Hoi  way,   Adm'r,   72 

Pa.    St.    126;    Rowlings   v.   McRob-  Me.  298;  Kent  v.  Atlantic,  DeLaine 

erts,  95  Ky.  346;  Leaver  v.  Gauss,  Co.,  8  R.  I.  305. 
62  Iowa,  314. 


282  ABSTRACTS    OF    TITLE. 

and  setting  out  the  material  and  operative  parts  of  the  instru- 
ment should  leave  the  question  of  their  legal  import  and  effect 
to  counsel. 

This  class  of  conveyances  conrprises  deeds  of  equitable  in- 
terests, contingent  and  vested  remainders,  reversions,  all  con- 
veyances not  in  presenti,  and  may  include  estates  for  life  or 
years,  as  well  as  incorporeal  hereditaments,64  easements  and 
the  like.  Greater  particularity  is  required  in  their  treatment 
than  in  the  other  classes  of  conveyances  heretofore  mentioned, 
as  their  validity  and  effect  do  not  depend  so  much  on  general 
principles,  as  in  case  of  warranties  and  quitclaims,  as  upon 
the  application  of  special  provisions  of  law  to  particular  facts. 
The  operative  words  of  conveyance,  and  frequently  those  of 
purchase  or  limitation,  become  material  in  determining  the 
nature  and  extent  of  the  estate  granted,  while  the  habendum, 
or  some  portion  thereof,  must  also  be  resorted  to  to  explain  or 
further  define  the  grant  made  in  the  premises.  The  conditions 
annexed  to  the  grant,  or  restraints  upon  the  use  or  enjoyment 
of  the  land  must  further  be  observed,  and  where  covenants  are 
inserted  in  a  deed  of  this  kind  it  is  well  to  allude  to  them. 

It  is  a  generally  recognized  principle,  that  where  the  grant- 
ing clause  does  not  define  the  nature  of  the  estate  conveyed, 
and  is  not  followed  by  language  assuming  to  supply  what  is 
thus  omitted,  the  estate  conveyed  is  a  fee,  or  whatever  inter- 
est the  grantor  possessed  at  the  time,  and  this  is  the  general 
statutory  doctrine;  but  where  the  habendum  describes  what 
estate  passes  it  becomes  efficient  to  declare  the  intention,  and 
will  rebut  any  implication  which  would  otherwise  arise  from 
the  omissions  of  the  premises.     The  habendum,  in  such  case, 

64  A  grantee  may  take  a  fee  in  not  in  his  demesne,  which  means 
any  kind  of  hereditament,  either  property  in  the  thing  itself:  Wig- 
corporeal  or  incorporeal;  but  there  gins  Ferry  Co.  v.  0.  &  M.  Railway 
is  this  distinction  between  the  two  Co.,  94  111.  83.  This,  however,  is 
species;  that  a  man  is  seized  in  his  one  of  the  abstractions  of  the  me- 
demesne  as  of  a  fee  of  a  corporeal  diseval  lawyers  and  the  distinction 
hereditament,  while  of  an  incor-  may  not  be  recognized  in  many 
poreal  hereditament  he  can  only  States. 
be  said  to  be  seized  as  of  fee,  and 


CONVEYANCES    BY    INDIVIDUALS.  283 

does  not  contravene  the  rule  that  nothing  can  be  limited 
thereby,  nor  does  it  contradict  the  language  of  the  granting 
clause,  but  simply  supplies  what  is  there  omitted,  and  removes 
all  necessity  for  resorting  to  implication  to  ascertain  the  inten- 
tion of  the  parties.65  Neither  can  the  covenants  enlarge  the 
grant,  whatever  be  their  tenor,66  yet  they,  like  the  habendum, 
may  serve  to  more  fully  explain  the  intention  of  the  parties, 
as  will  be  seen  from  some  of  the  examples  given  in  this  chap- 
ter, and  courts  are  ever  more  inclined  to  look  to  the  whole  in- 
strument for  a  proper  construction,  than  to  isolated  and  de- 
tached portions  as  formerly.67 

§  231.  Continued  —  Illustrations  of  Special  Cases. 
It  is  impossible  to  give  more  than  a  reference  to  the  large 
class  of  conveyances  that  come  within  the  scope  of  this  section, 
but  it  is  believed  that  the  examiner  will  readily  recognize  such 
when  met  with  in  actual  practice. 

A  common  occurrence  in  deeds  and  wills  will  be  found  in 
the  efforts  to  secure  to  married  women  and  their  children  the 
use  and  ownership  of  land  freed  from  the  dominion  and  con- 
trol of  the  husband  and  father,  and  such  conveyances  give  rise 
to  many  subtle  questions  in  their  construction.  A  conveyance 
of  land  directly  to  a  woman  and  her  children,  without  other 
words,  she  then  having  children,  would  vest  the  title  in  her 
and  her  children  equally,6 s  and  it  seems  no  title  will  vest  at  law 
in  children  thereafter  born,69  although  the  instrument  may 
declare  the  grantor's  intent  that  the  after-born  children  shall 
take.70  But  such  children  would  take  as  beneficiaries  under 
a  trust  by  deed,71   or  will,72   and  perhaps  the  living  grantees 

C5  Biggin  v.  Love,   72  111.   553.  69Faloon  v.  Simshauser,  130  111. 

ce  Lamb   v.    Wakefield,    1    Sawyer  649. 
(C.  Ct.)   251.  ToLillard    v.     Ruckers,    9    Yerg. 

0  7  Saunders   v.   Hanes,   44   N".    Y.  (Tenn.)    64;   Newsom  v.  Thompson, 

353;  Callins  v.  Lavelle,  44  Vt.  230.  2  Ired.   (N.  C.)  277;  but  see,  Barber 

G8  Hickman    v.     Quinn,    6    Yerg.  v.  Harris,  15  Wend.   (N.  Y.)   615. 
(Tenn.)    96;   Loyless  v.  Blackshear,  71  Gray     v.     Hayes,     7     Humph. 

43   Ga.   327;    Barber   v.   Harris,    15  (Tenn.)    588. 

Wend.    (N.  Y.)   615.  72  Turner   v.  Ivie,  5  Heisk.(Tenn.) 

222. 


284  ABSTRACTS    OF    TITLE. 

under  such  a  deed  expressly  providing  for  after-born  children 
would  hold  the  legal  title  interest  for  themselves  and  such 
children.73 

A  veiy  slight  indication  of  an  intention  that  the  children 
shall  not  take  jointly  with  the  mother  will  suffice  to  give  the 
estate  to  the  mother  for  life,  with  remainder  to  the  children, 
as  well  in  the  case  of  a  deed  74  as  of  a  will  75  and  even  though 
the  woman  should  have  no  children  then  living,  or  if  she  were 
unmarried,  there  would  yet  be  such  a  contingent  remainder 
in  favor  of  any  children  she  might  have,  that  she  would  have 
no  power  by  a  conveyance  before  issue  to  defeat  this  con- 
tingent remainder  in  favor  of  such  issue.76  There  are  cases 
which  hold  that  a  conveyance  to  a  woman  and  her  children 
will  vest  in  the  woman  no  more  than  an  estate  for  life  with 
remainder  in  fee  to  the  children  as  a  class,  so  that  those  in 
being  at  the  date  of  the  deed  as  well  as  those  subsequently 
born  would  be  entitled  to  take  in  the  distribution  on  the 
termination  of  the  life  estate.77  It  is  also  a  well  established 
Tule  that  a  conveyance  to  a  woman  and  the  heirs  of  her  body 
will  pass  only  a  life  estate  to  the  woman  herself,  her  children, 
whether  born  before  or  after  execution,  taking  a  vested  estate 
in  the  remainder.78  In  like  manner,  a  deed  to  a  woman  and 
her  issue  by  a  specified  husband,  will  give  to  her  only  a  life 
estate  with  the  remainder  to  her  children  begotten  by  such 
specified  husband.79  If  the  conveyance  be  expressly  to  the 
mother  for  life,  and  after  her  death  to  her  children,  the  chil- 
dren born  during  the  life  estate  would  take,  the  remainder 
vesting  as  they  came  into  being,  and  opening  to  let  in  those 
born  afterward.80 

73  Holmes  v.  Jarret  Moon,  7  77Coursey  v.  Davis,  46  Pa.  St. 
Heisk.  (Tenn.)  506;  Jackson  v.  Sis-  25;  Hague  v.  Hague,  161  Pa.  St. 
son,  2  Johns.   Cas.   321;    Schumpert       643. 

v.  Dillard,  55  Miss.  438.  7S  Fletcher  v.  Tyler,  92  Ky.   145. 

74  Moore    v.     Simmons,     2    Head  79  Bodine  v.  Arthur,  91  Ky.  53. 
(Tenn.),  506.  80  Beecher      v.      Hicks,      7      Lea 

75  Bunch  v.  Hardy,  3  Lea(Tenn.),  (Tenn.)  207;  Blair  v.  Vanblarcum, 
543.  71  111.  290. 

76  Frazer   v.    Sup.    of   Peoria,    74 
111.  282. 


CONVEYANCES    BY    INDIVIDUALS.  285 

In  all  of  these  cases,  aside  from  the  fine  points  of  construc- 
tion to  decide  the  ownership  of  the  fee,  collateral  questions 
arising  from  the  doctrine  of  dower  and  curtesy  present  them- 
selves according  as  the  statutory  law  of  the  State  may  be; 
the  collateral  questions  being  dependent  on  the  construction 
of  the  main  question  of  the  nature  and  quality  of  the  estate 
conveyed.  The  intention  of  the  grantor  being  gathered  from 
the  whole  instrument,  it  is  recommended  that  all  technical 
words  of  conveyance,  limitation  and  definition,  whether  in 
premises,  habendum  or  covenants,  be  set  out  fully  and  without 
reserve,  and  repugnancies  or  variations  noted  as  heretofore 
shown.  In  the  instances  above  cited,  and  generally  when  the 
instrument  purports  to  convey  more  than  one  estate,  or  where 
the  estate  conveyed  is  defeasible  from  any  cause,  the  premises 
and  habendum  must  be  construed  together  and  should  be  prop- 
erly presented  for  that  purpose;  as,  in  a  case  where  land  is 
conveyed  to  A,  to  hold  until  his  son  B  shall  become  of  age,  and 
then  to  B  in  fee ;  or  if  B  shall  die  before  that  event,  then  to 
A  in  fee.  In  such  a  case  the  premises  and  habendum  and  all 
operative  words  become  material  and  must  be  shown,  thus : 

Grants,  bargains,  sells  and  conveys  to  A,  and  his  son  B,  the 
following  described  land,  etc. 

To  have  and  to  hold  *  *  *  unto  said  A,  for  and  dur- 
ing the  minority  of  his  son  B,  and  until  said  B  shall  arrive 
at  the  age  of  twenty-one  years;  and  unto  said  B,  his  heirs,  etc., 
*  *  *  in  case  lie  shall  arrive  at  the  full  age  of  twenty- 
one  years;  but  in  case  the  said  B  shall  decease  before  he  ar- 
rives at  the  age  of  twenty-one  years,  then  unto  said  A,  his 
heirs,  etc. 

(Note  covenants  if  material.) 

As  a  general  rule,  contingent  interests  are  assignable,  de- 
visable and  descendible  the  same  as  the  vested  interests.81 

§  232.  Restrictive  and  Conditional  Conveyances. 
The  subject  of  conditions  and  restrictive  clauses  in  deeds  and 

81  Kenyon  v.  See,  94  N.  Y.  563. 


286  ABSTRACTS    OF    TITLE. 

other  forms  of  conveyance  lias  already  been  alluded  to,  and 
need  not  be  extensively  discussed  here.  As  a  rule,  any  condi- 
tion which  is  repugnant  to  the  estate  granted  will  be  invalid, 
but  it  has  been  held  that  the  owner  of  property  has  a  right  to 
dispose  of  it  with  a  limited  restriction  on  its  use,  however 
much  the  restriction  may  effect  its  value  or  the  nature  of  the 
estate  conveyed.  Repugnant  conditions  are  those  which  tend 
to  the  utter  subversion  of  an  estate;  such  as  prohibit  entirely 
the  alienation  or  use  of  the  property.  Conditions  which  pro- 
hibit its  alienation  to  particular  persons,  or  for  a  limited 
period,  or  which  provide  for  its  subjection  to  particular  uses, 
are  not  subversive  of  the  estate.  They  do  not  destroy  or 
limit  its  alienable  or  inheritable  character,  and  the  reports 
are  full  of  cases  where  conditions  imposing  restrictions  upon 
uses  to  which  property  conveyed  in  fee  may  be  subjected,  have 
been  upheld.  In  this  way  slaughter  houses,  soap  factories,  sa- 
loons, distilleries,  livery  stables,  tanneries,  and  machine  shops 
have  in  a  multitude  of  instances,  been  excluded  from  par- 
ticular localities,  which,  thus  freed  from  unpleasant  sights, 
noxious  vapors,  or  disturbing  noises,  have  become  desirable  as 
places  for  residences  of  families.82  That  such  a  purpose  is 
a  legitimate  one,  and  may  be  carried  out  consistently  with  the 
rules  of  law,  by  reasonable  and  proper  covenants,  conditions, 
or  restrictions,  can  not  be  doubted. 

In  abstracting  deeds  of  this  character,  the  attention  of  the 
examiner  should  be  particularly  directed  to  the  words  of  grant, 
the  habendum,  the  conditions  annexed  to  the  grant,  and  the 
covenants.  Conditions  restricting  the  use  of  the  premises  con- 
veyed are  usually  conditions  subsequent,  and  often  provide 
for  a  reversion  of  the  title  upon  their  breach,  and  upon  which 
the  grantor  may  recover  in  ejectment.83     The  form  for  creat- 

82Cowell  v.  Colorado  Springs  Co.,       Pick.  284;   Clark  v.  Martin,  94  Pa. 
100  U.   S.   55;    Plumb  v.  Tubbs,  41       St.  2S9. 

N.    Y.    442;    Collins    v.    Marcy,    25  83  Plumb  v.  Tubbs,  41  N.  Y.  442; 

Conn.    242;     Sperry    v.     Pound,     5       Wakefield  v.    Van   Tassell,   202   111. 
Ohio.    189;    Gray    v.    Blanchard,    8       41;    Martin  v.   Ry.   Co.,   37   W.  Va. 

349. 


CONVEYANCES    BY    INDIVIDUALS.  287 

ing  a  condition  in  a  grant  or  deed,  as  laid  down  by  the  ele- 
mentary writers,  is  "  provided  always,  and  this  deed  is  upon 
the  express  condition,"  84  and  these  expressions  have  al- 
ways been  held  sufficient  to  create  an  estate  upon  condition, 
unless  there  is  something  in  the  deed  to  negative  this  idea. 
Inasmuch  as  estates  upon  condition  working  forfeiture  are 
odious,85  courts  have  generally  laid  hold  of  any  plausible  fea- 
ture to  sustain  them.  Such  conditions  are  not  favored,  and 
must  be  construed  strictly,86  and  will  under  no  circumstances, 
be  enforced  further  than  may  be  absolutely  required,  and  so 
strong  is  this  principle  engrafted  in  the  law  that  courts  of 
equity  will  seldom  lend  their  aid  to  divest  an  estate  for  breach 
of  a  condition.87 

The  fact  that  an  estate  is  subject  to  condition  does  not  in 
any  way  affect  its  capacity  for  alienation,  or  of  being  devised, 
or  descending  in  the  same  manner  as  an  indefeasible  estate, 
but  the  purchaser,  devisee,  or  heir,  takes  it  subject  to  what- 
ever conditions  may  be  annexed  to  it.88  The  estate  so  granted 
is  sometimes  called  a  base  or  qualified  fee,  being  such  as  has 
a  qualification  subjoined  thereto,  and  which  must  be  deter- 
mined whenever  the  qualification  annexed  to  it  is  at  an  end. 
It  is  a  fee,  because  it  may  possibly  endure  forever;  and  it  is 
base  or  qualified,  because  its  duration  depends  upon  collateral 
circumstances  which  qualify  and  debase  the  purity  of  the  do- 
nation.89 But  these  terms  are  now  rarely  employed,  the  ideas 
they  represent  being  better  expressed  by  what  is  called  a  con- 
ditional limitation.  Indeed,  the  ideas  involved,  as  well  as  the 
terms  in  which  they  are  expressed,  are  survivals  of  the  middle 

84  Kent's  Com.  122;  2  Wash.  87  Warner  v.  Bennett,  31  Conn. 
Real  Prop.  3.  478;  Ins.  Co.  v.  Walsh,  54  111.  164; 

85  Warner  v.  Bennett,  31  Conn.  Palmer  v.  Ford,  70  111.  369;  Wing 
478;  Palmer  v.  Ford,  70  111.  369;  v.  Railey,  14  Mich.  83;  Smith  v. 
Craig  v.  Wells,  11  N.  Y.  315.  Jewett,  40  N.  H.  530. 

86Gadberry  v.  Sheppard,  27  Miss.  88  Taylor  v.  Sutton,   15  Ga.   103; 

203;   Bradstreet  v.   Clark,   21   Pick.  Wilson  v.   Wilson,   38  Me.    18;    Un- 

389;    Hoyt    v.    Kimball,    49    N.    H.  derhill  v.  R.  R.  Co.,  20  Barb.  455. 
327;  4  Kent  Com.  130;  Woodworth  89  Wiggins  Ferry  Co.  v.  O.  &  M. 

v.  Paine,  74  N.  Y.  196.  Ry.  Co.,  94  111.  83. 


288  ABSTRACTS    OF    TITLE. 

period  of  the  common  law,  and  in  modern  legal  theories  have 
practically  become  obsolete. 

§  233.     Prohibited      Conveyances  —  Adverse      Seizin. 

"  From  an  early  date,"  says  Washburn,  "  the  policy  of  the  law 
has  not  admitted  of  the  conveyance,  by  any  one,  of  a  title  to 
land  which  is  in  the  adverse  seizin  and  possession  of  another. 
This  is  considered,  not  as  passing  a  title,  but  as  the  transfer 
of  a  right  of  action  in  violation  of  the  early  laws  against 
champerty  and  maintenance,  and  therefore,  not  to  be  sus- 
tained by  the  courts."  fc0  This  doctrine  was  long  maintained 
in  this  country  and  still  prevails  to  a  limited  extent  in  some 
of  the  older  States,91  but  in  the  West  it  has  been  swept  away 
by  express  statutory  enactments,  and  no  conveyance  is  void  be- 
cause at  the  time  of  its  execution  or  delivery,  the  land  in  ques- 
tion is  in  the  possession  of  another  who  holds  by  a  title  adverse 
to  that  of  the  grantor.92  Where  such  doctrine  still  prevails, 
an  entry  on  the  land  and  delivery  there,  will  evade  the  letter 
of  the  law  and  make  good  the  deed.93  The  abstract  will  show 
both  titles,  provided  they  are  each  deducible  of  record,  and 
questions  of  this  kind  must  be  decided  by  the  application  of 
local  law  to  the  admitted  or  known  circumstances.  At  most, 
the  principle  will  apply  only  as  to  the  person  holding  the 
adverse  title  at  the  time  of  the  execution  and  delivery  of  the 
deed,  or  those  claiming  by,  through  or  under  him,  and  as  to 
all  others  the  deed  would  be  valid  and  effectual.94 

90  3'  Wash.  Real   Prop.   329    (4th  grantee  the  same  right  of  recovery 
Ed.).  in  ejectment  as  if  the  grantor  had 

91  Sohier  v.  Coffin,  101  Mass.  179;  been  in  the  actual   possession  when 
Jones  v.  Monroe,  32  Ga.  188.  he    conveyed :       Chicago    v.    Vulcan 

92  Hall    v.    Ashby,    9    Ohio,    96;  Iron  Works,  93  111.  222. 

Shortall  v.  Hinkley,  31  111.  219;  93  Farwell  v.  Rogers,  99  Mass. 
Crane  V.  Reeder,  21  Mich.  82;  Stew-  36;  Warner  v.  Bull.  13  Met.  4. 
art  v.  McSweeney,  14  Wis.  471.  94  Edwards  v.  Rays,  18  Vt.  473; 
Under  these  statutes  any  one  claim-  Wade  v.  Lindsey,  6  Met.  407 ;  Bet- 
ing title  to  land  although  out  of  sey  v.  Torrance,  34  Miss.  138;  Far- 
possession,  and  notwithstanding  num  v.  Peterson,  111  Mass.  151. 
there  may  be  an  actual  adverse  pos-  The  English  statutes  upon  which 
session,  may  sell  and  convey  the  this  doctrine  was  founded,  grew 
same  as  though  in  actual  posses-  out  of  peculiar  exigencies  entirely 
sion,    and    his    deed    will    give    the  foreign  to  our  condition  and  habits. 


CONVEYANCES    BY    INDIVIDUALS.  289 

§  234.  Continued  —  Fraudulent  Conveyances.  What 
are  known  as  "  fraudulent  conveyances,"  or  such  as  are  made 
with  intent  to  hinder  and  delay  creditors,  though  formal  in 
all  respects,  and  valid  and  effectual  between  the  parties,  are 
prohibited  by  law  and  void  to  a  certain  extent.95  Depending 
largely  upon  intent,  the  record  will  furnish  few  clues  to  the 
real  character  of  such  a  deed,  which  will  usually  pass  unques- 
tioned when  found  upon  the  abstract.  Want  of  consideration 
may  be  sufficient  to  raise  an  inquiry,  yet,  as  has  been  seen, 
this  of  itself  does  not  denote  bad  faith,  nor  is  a  consideration 
essential  to  the  vesting  of  the  title,  and  where  the  controlling 
motive  in  making  the  deed  was  to  defeat  creditors,  a  full  con- 
sideration is  usually  expressed.  The  invalidity  of  a  deed  is 
usually  the  result  of  a  decision  of  a  court,  and  whatever  inter- 
nal evidence  it  may  possess  will  rarely  decide  its  character. 

The  question  of  fraudulent  intent,  as  a  rule,  is  confined  to 
the  immediate  parties  and  does  not  extend  to  the  second 
grantee,  who,  if  acting  in  good  faith  and  without  notice,  will 
take  the  property,  and  the  full  title,  purged  of  its  former 
taint.96  Such  a  purchaser  is  a  favorite  in  the  eyes  of  a  court 
of  equity.97 

§  235.  Conveyances  Subject  to  Incumbrance.  Where 
land  is  conveyed  subject  to  a  mortgage,  a  promise  to  pay  the 
debt  thus  secured  can  not  be  inferred  from  the  mere  accept- 
ance of  the  deed.98  even  though  made  a  part  of  the  considera- 
tion.99    In  the  absence  of  other  evidence,  such  a  deed  shows 

They   were   passed   at   the   close   of  Stevens    V.   Harrow,    26    Iowa,   458. 

revolutions,    when   the    property    of  96  Jackson    v.    Henry,    10    Johns, 

the  kingdom  having  to  a  great  ex-  185;    Wright   v.    Howell,    35    Iowa, 

tent  changed  hands,   it  became  the  292;  1  Story  Eq.  Jur.  §434;  George 

interest  of  those  who  succeeded  to  v.   Kimball,   24   Pick.    238;    4   Kent 

power   to   place   every    possible    ob-  Com.   (11th  Ed.)  464. 

stacle    in    the    way    of    the    former  97  1  Story  Eq.  Jur.  §  434. 

proprietors  recovering  possession.  98  Ins.  Co.  v.  Stewart,  86  Pa.  St. 


95  Dyer  v.   Homer,   22   Pick.   258 

Dunlap    v.    Dunlap,    10    Ohio    162 

Harvey   v.    Varney,    98    Ma-ss.    118 

Horner  v.  Zimmerman,  45   111.    14 

19 


89. 

99  Fiske  v.  Tolman,  124  Mass. 
254.  Compare  Twitchell  v.  Mears, 
8  Biss.    (C.  Ct.)    211. 


290  ABSTRACTS    OF    TITLE. 

that  the  grantee  merely  purchased  the  equity  of  redemption.1 
But  if  a  grantee  takes  a  deed,  containing  a  stipulation  that  the 
land  is  subject  to  a  mortgage,  which  the  grantee  assumes  or 
agrees  to  pay,  a  duty  of  payment  is  imposed  on  him  by  the 
acceptance,  and  the  law  implies  a  promise  to  perform  it.2 
This,  of  course,  only  applies  where  there  has  been  an  actual 
acceptance  by  the  grantee,  for  the  simple  facts  of  execution, 
acknowledgment,  and  recording  of  a  deed  of  incumbered  prop- 
erty, with  a  clause  therein  that  the  grantee  shall  pay  the  mort- 
gage indebtedness,  is  not  sufficient,  in  itself,  to  create  a  per- 
sonal liability  on  the  part  of  such  grantee  unless  he  has  as- 
sented to  such  clause,  yet  as  we  have  seen,  by  his  acceptance 
of  the  deed  his  assent  to  all  it  contains  may  be  inferred.3 

The  examiner  should  observe  great  care,  therefore,  in  the 
abstracting  of  clauses  relating  to  subsisting  claims  or  incum- 
brances, for  the  purchaser  is  charged  with  notice  of  all  re- 
citals of  this  character,  and  is  bound  thereby  even  though 
such  incumbrance  fails  to  appear  of  record.4  Though  the 
conveyance  of  property  subject  to  mortgage,  unless  expressly 
so  provided,  imposes  no  personal  liability  on  the  grantee,  it 
yet  raises  a  presumption  that  the  purchaser  buys  the  property 
to  the  extent  stated,  and  takes  his  chances  of  realizing  out  of 
it  enough,  over  and  above  the  mortgage,  to  indemnify  him 
for  his  advance  of  purchase  money.  The  fair  inference  is 
that  the  purchaser  does  not  pay  the  vendor  the  full  value  of 
the  property,  but  that  the  amount  of  the  mortgage  debt  is  re- 
served in  his  hands  as  so  much  purchase  money  for  the  pur- 
pose of  discharging  the  lien.  In  such  case  the  land  conveyed 
is  as  effectually  charged  with  the  amount  of  the  mortgage  as 
if  the  purchaser  had  expressly  assumed  its  payment.5 

As  between  the  vendor  and  the  purchaser  of  the  equity  of 
redemption,  the  general  rule  is  that  the  land  is  the  primary 

1  Strong  v.  Converse,  8  Allen,  557.  3  Thompson  v.  Dearborn,   107   111. 

2  Pike    v.    Brown,    7    Cush.    133 


Furnas  v.   Durgin,   119  Mass.   500 
Schumucker  v.  Sibert,  18  Kan.  104 


4  White  v.  Foster,  102  Mass.  375; 
Vaughan  v.  Greer,  38  Tex.  530. 


Miller  v.  Thompson,  34  Mich.  10.  5  Gale  v.  Wilson,  30  Gratt.   (Va.) 

166. 


CONVEYANCES    BY    INDIVIDUALS.  291 

fund  for  the  liquidation  of  the  incumbrance,0  but  where  the 
payment  of  an  outstanding  incumbrance,  created  by  the  gran- 
tor, expressly  constitutes  part  of  the  purchase  money,  it  has 
been  held  in  some  cases  that  the  law  will  imply  an  undertak- 
ing by  the  purchaser  to  pay  it,  upon  which  the  mortgagee  may 
recover.7  Where  this  doctrine  obtains  the  consideration  re- 
cital becomes  important  and  should  be  fully  shown  in  the  ab- 
stract. 

§  236.  Dedication  by  Deed.  Intent,  as  has  been  stated, 
is  the  vital  principle  of  dedication.  In  a  case  where  acts  and 
declarations  are  relied  on  to  show  such  intent,  to  be  effectual 
they  must  be  unmistakable  in  their  purpose  and  decisive  in 
their  character;  and  in  every  case  must  be  unequivocally  and 
satisfactorily  proved.8  Where  the  deed  relied  on  is  to  the 
public  direct,  that  is,  *  to  the  State  or  any  of  its  municipal 
agencies,  no  question  as  to  the  intent  can  usually  arise ;  but 
when  the  dedicatory  matter  forms  a  recital  or  agreement  in 
a  deed  between  individuals,  the  rule  above  stated  becomes 
efficient  to  determine  its  import.  In  ascertaining  the  intent 
of  the  parties  in  the  latter  case,  it  is  a  fundamental  rule  of 
construction,  that  the  language  employed  is  to  be  read  in  the 
light  afforded  by  the  subject-matter  and  the  surrounding  cir- 
cumstances,9 while  every  part  of  the  deed  is  admissible  to  de- 
clare the  meaning  of  certain  passages,  and  such  construction 
should  be  put  upon  particular  words  as  will  best  answer  and 
effectuate  the  apparent  general  intention.10 

The  recitals  indicative  of  dedication  are  best  shown  by  a 
literal  transcription,  whenever  the  circumstances  will  admit  of 
such  treatment,  or  a  judicious  condensation  of  the  agreement, 
covenants  and  declaration  of  uses,  may  be  presented  when  such 

6  Daniel     v.     Leitch,      13     Gratt.  8  Harris'    case,    20    Gratt.     (Va.) 

(Va.)     206;     Jumel    v.     Jumel,     7  833;    Holdane   v.    Cold    Spring,    21 

Paige,    595;     Wedge    v.    Moore,     6  N.    Y.    474;    Harding    v.    Hale,    61 

CuBh.    8;    Eaton    v.    Simmonds,    14  111.  192. 

Pick.  98.  9  Nash  v.  Towne,  5  Wall.   689. 

TTwitrhell  v.  Mears,  8  Biss.    (C.  10 Talbott  v.  R.  R.  Co.,  31  Gratt. 

Ct.)    211;   and  see  Garsney  v.  Rog-  (Va;)  685. 
ers,  47  N.  Y.  233. 


292  ABSTRACTS    OF    TITLE. 

a  course  may  not  be  desirable;  but,  in  any  event,  sufficient  of 
the  language  employed  should  be  given  as  will  enable  counsel 
to  determine  whether  there  has  been  a  dedication  to  public 
uses,  or  simply  an  adjustment  of  the  conflicting  claims  of  the 
parties,  resulting  in  a  common  right  of  way  to  be  annexed  as 
an  easement  to  the  property  for  the  convenience  of  the  owners, 
and  not  for  the  accommodation  of  the  public. 

§  237.  Resulting  Trusts.  It  is  a  general  rule  of  equity, 
that  if  the  purchase  money  of  land  is  paid  by  one  person,  but 
the  deed,  through  any  accident,  mistake,  fraud,  or  other  cir- 
cumstances contrary  to  the  real  intention  of  the  parties,  is 
taken  in  the  name  of  another,  the  trust  of  the  legal  estate  re- 
sults to  him  who  advanced  the  money,11  and  this  circumstance 
formerly  raised  many  questions  in  examinations  of  title. 
However,  of  late  years,  the  operation  of  this  rule  has  been 
greatly  restricted  by  statute,  and  many  of  the  questions  which 
formerly  perplexed  examiner  and  counsel  are  now  laid  at  rest. 
The  statute  has  not  abolished  trusts  arising  or  resulting  by 
implication  of  law,  but  in  a  majority  of  instances  has  declared 
the  legal  title  to  be  vested  in  the  alienee  named  in  the  deed, 
subject  to  the  claims  of  creditors  of  the  person  paying  the  con- 
sideration, in  whose  favor  a  trust  for  the  amount  of  their  claims 
results,  but  even  such  trust  can  not  be  established  to  defeat  or 
prejudice  the  title  of  a  purchaser  for  a  valuable  consideration 
and  without  notice  of  such  trust.12 

Wherever  the  foregoing  law  obtains,  and  it  is  now  very 
general,  but  little  difficulty  will  be  experienced  from  this  class 
of  undisclosed  trusts,  and  until  their  efficiency  has  been  de- 
clared by  a  court  of  competent  jurisdiction  they  can  form  no 

11  Case  v.  Codding,  38  Cal.   191;  12  See  R.  S.  Wis.,  Chap.  96;  Gen. 

Frederick    v.    Haas,     5    Nev.    389;  Stat.  Minn.,  Chap.  43;  Comp.  Laws 

Fleming    v.    McHale,    47    111.    282;  Mich.  §2637;  R.  S.  N.  Y.  §51;  con- 

Dryden    v.    Hanway,    31    Md.    254;  suit    Martin     v.    Martin,     5     Bush 

Mallory  v.  Mallory,  5  Bush    (Ky.),  (Ky.),    47;    Durfee    v.    Pavitt,    14 

464;    Johnson    v.    Quarles,    46    Mo.  Minn.    424;     Fisher    v.    Forbes,    22 

423;    Nixon's    Appeal,    63    Pa.    St.  Mich.  454;    Foote  v.  Bryant,  47  N. 

279;     Campbell     v.     Campbell,     21  Y.  544. 
Mich.    438;     Harvey    v.    Ledbetter, 
48  Miss.  95. 


CONVEYANCES    JRY    INDIVIDUALS.  293 

appreciable  factor  in  making  up  the  estimate  of  title.  A 
neglect  to  state  the  consideration  of  the  conveyance  or  acknowl- 
edge its  payment  was  formerly  considered  evidence  of  a  re- 
sulting trust  in  favor  of  the  grantor  or  some  other  person  pay- 
ing same,  but  this,  as  has  been  seen,  no  longer  prevails,  and  a 
failure  to  recite  the  consideration  will  not  materially  affect 
the  conveyance  though  it  may,  in  some  localities,  be  evidence 
of  a  vendor's  lien. 

§  238.  Re-records  and  Duplicates.  Re-records,  and  du- 
plicates of  instruments  already  shown  in  present  or  former 
examinations,  if  they  disclose  no  variations,  may  be  passed 
with  the  briefest  notice.  Such  instruments  only  serve  to  in- 
cumber the  chain,  and  should  be  kept  out  of  sight  as  far  as 
possible. 

The  following  is  considered  a  sufficient  notice : 

Harry    M.    Pachham,    bach-' 
elor, 

to 
The  Illinois  Central  Rail- 
road Company,  its  succes- 
sors and  assigns, 
corded  Aug.  16,  1852,  as  Doc.  36,168,  in  Booh  101,  page  580, 
'as  appears  by  the  Recorder's  certificate  appended  to  the 
record. 

In  case  of  duplicates,  say: 

Apparently  a  duplicate  of  lease  recorded  Sept.  5,  1882,  as 
Doc.  100,580,  in  Booh  910,  page  550  (and  shown  as  No.  15 
of  this  examination). 

A  re-record,  of  course,  carries  its  own  internal  evidence, 
while  duplicates  can  only  be  classed  as  such  by  inference,  yet 

13  Here  follows  the  various  mat-  they  are  omitted  in  the  form  above 

1<rs  relating  to  registration,  consid-  given  and  the  same  course  will   be 

eration,   the   grant,   etc.,   as    shown  pursued    for   the   remainder   of   the 

in  previous  examples.     For  brevity  work. 


Deed. 

Dated,   etc.13 

*           *           * 

* 

* 

*           *           * 

* 

* 

A     re-record     of 

deed 

re- 

294  ABSTRACTS    OF    TITLE. 

where  there  appears  an  exact  correspondence  of  parties,  dates, 
subject-matter,  as  well  as  identity  of  language,  it  is  almost 
impossible  that  the  examiner  shall  err  in  classing  it  as  a  du- 
plicate. When  the  originals  appear  in  the  same  examination, 
re-records  and  duplicates  should,  whenever  practicable,  imme- 
diately follow  such  originals,  in  which  event  say: 

Apparently  a  duplicate  of  the  foregoing  instrument. 

When  such  original  instruments  do  not  form  a  portion  of 
the  examination,  the  re-records  should  not  be  inserted  in  the 
chain  of  title,  but  are  best  shown  among  the  appendices,  under 
the  head  of  "  Re-records,"  or  "  We  also  find." 

§  239.  Corrected  Records.  Not  infrequently  instru- 
ments are  incorrectly  transcribed  by  the  recording  officer  and 
the  error  of  transcription  only  becomes  manifest  after  an  ab- 
stract of  the  record  has  been  made.  In  such  cases  a  correction 
of  the  record  is  usually  had  and  a  mention  of  such  corrected 
record  becomes  necessary  in  the  abstract.  It  is,  of  course,  per- 
missible for  the  examiner  to  correct  the  abstract  to  conform  to 
the  corrected  record,  but  this  means  an  erasure  or  mutilation 
of  some  kind,  and  if  such  correction  is  made  after  the  ab- 
stract has  left  the  examiner's  hands  a  precedent  of  most  doubt- 
ful character  is  established.  In  such  event,  perhaps,  it  is  bet- 
ter to  add  a  marginal  note  showing  the  correction  than  to 
tamper  with  what  has  already  been  shown.  If  this  shall  be 
thought  desirable  something  like  the  following  may  be  in- 
serted after  the  erroneous  item  or  placed  opposite  to  it  in  the 
margin  of  the  abstract. 

Note. —  Since  the  date  of  this  examination  the  record  of  the 
foregoing  deed  has  been  corrected  by  the  Recorder  so 
that  the  description  of  the  land  thereby  conveyed  now 
appears  on  such  record  as  follows:  [Here  set  out  the 
corrected  description  or  other  matter.] 

(Signed)     Handy  &  Company, 
Chicago,  June  1,  1903.  Examiners. 


CHAPTER  XVI. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES. 


§  240. 

Marriage  settlements. 

§  255. 

241. 

Conveyances      to      husband 

and  wife. 

256. 

242. 

Conveyances    between    hus- 

band and  wife. 

257. 

243. 

Conveyances      by      married 

women. 

258. 

244. 

Effect  of  wife's  conveyance. 

259. 

245. 

Acknowledgment     of     deeds 

by  married  women. 

260. 

246. 

Release  of  dower. 

261. 

247. 

Joint  tenancies   and  tenan- 
cies in  common. 

262. 

248. 

Partition  deeds. 

263. 

249. 

Partnership  conveyances. 

264. 

250. 

Corporate    conveyances. 

265. 

251. 

Statute  of  mortmain. 

266. 

252. 

Power  of  acquisition — User. 

267. 

253. 

Municipal    corporations. 

268. 

254. 

Conveyances      to      corpora- 

tions. 

269. 

Conveyances  by  corpora- 
tions. 

Continued  —  Execution  — 
Acknowledgment. 

Acts  of  officers  in  excess  of 
charter  powers. 

Record  of  seal. 

Conveyances  by  incorpo- 
rated   religious    societies. 

Heirs  at  law. 

Post  obit  conveyances. 

Conveyances  by  delegated 
authority. 

Powers  of  attorney. 

Revocations. 

Conveyances  in  trust. 

Revocation  of  trust. 

Declarations  of  trust. 

Removal  and  substitution 
of  trustees. 

Resignation  —  Refusal  to 
act  —  Successor. 


§  240.  Marriage  Settlements.  It  was  at  one  time 
doubted  whether  any  interest  in  either  real  or  personal  prop- 
erty could  be  settled  to  the  exclusive  use  of  a  married  woman 
without  the  intervention  of  trustees ;  but  for  many  years  di- 
rect conveyances  and  settlements  have  been  protected  in  equity 
alike  against  the  marital  rights  of  the  husband,  as  against  his 
creditors.  Nor  is  it  at  all  material  whether  the  settlement  be 
made  by  a  stranger  or  by  the  husband  himsef,  for  it  is  now 
universally  held  that  a  settlement  by  a  husband,  on  his  wife, 
made  by  direct  conveyance  to  her,  will  be  enforced  in  the  same 
manner,  and  under  the  same  circumstances,  that  it  would  be 

295 


296  AESTSACT3    OF   TITLE. 

if  made  by  a  stranger,  or  to  a  trustee  for  her  exclusive  use.1 
A  marriage  settlement  usually  conferred  upon  the  wife  only 
the  use  of  the  property  during  her  life,  or  for  a  definite  period, 
with  a  remainder  in  fee  to  her  issue  or  other  persons  desig- 
nated; but  marriage  settlements  proper  have  fallen  into  gen- 
eral disuse,  while  the  general  abolition  of  uses  and  trusts,  and 
removal  of  former  disabilities,  have  placed  conveyances  for 
this  purpose  upon  the  same  plane  and  subject  to  the  same  rules 
as  other  conveyances  between  individuals. 

Conveyances,  of  whatever  nature,  intended  as  a  settlement, 
should  be  shown  quite  fully,  particularly  the  granting  clause 
and  habendum,  together  with  any  special  matter  by  way  of 
restriction,  for  the  power  of  disposition  may  be  restricted  or 
enlarged  by  the  terms  of  the  settlement;  and  in  construing 
these  terms,  the  intention  of  the  grantor,  as  apparent  upon  a 
fair  construction  of  the  instrument,  must  govern.2  If  the 
instrument  contains  any  express  or  implied  restrictions  upon 
the  power  of  disposition,  either  as  to  the  mode  of  conveyance, 
or  purpose  for  which  it  may  be  conveyed,  she  can  convey  it  in 
no  other  manner  and  for  no  other  purpose,  while  if  it  contains 
no  limitation  or  restrictions,  express  or  implied,  she  may  con- 
vey it  in  the  same  manner  as  her  general  estate.3 

§  241.  Conveyances  to  Husband  and  Wife.  Under  the 
common  law,  a  grant  to  a  man  and  his  wife  does  not  consti- 
tute them  either  joint  tenants  or  tenants  in  common,  they  be- 
ing in  legal  contemplation  but  one  person,  and  hence  unable 
to  take  by  moieties.  Both  would  therefore  be  seized  of  the 
entirety;  neither  could  dispose  of  any  part  of  the  estate  with- 
out the  assent  of  the  other,  and  upon  the  death  of  either,  the 
whole  of  the  estate  would  remain  in  the  survivor.     This  rule 

i  Jones  v.  Clifton,  101  U.  S.  225;  (Tenn.)  461;  McChesney  v.  Brown's 

Sims  v.  Rickets,  35  Ind.   192;   Put-  Heirs,  25  Gratt.   (Va.)  393. 

nam  v.  Bicknell,  18  Wis.  351;   Bur-  3  Young     v.     Young,      7     Coldw. 

dens  v.  Amperse,  14  Mich.  91;  Wal-  (Tenn.)    461;    McClintic    v.    Ochel- 

lingford  v.  Allen,  10  Pet.  594.  tree,  4  W.  Va.  249;  Kimm  v.  Weip- 

2  Young     v.     Young,     7     Coldw.  pert2  46  Mo.  532. 


SPECIAL    CLASSES    OF   INDIVIDUAL    CONVEYANCES. 


297 


has  not  been  materially  changed  by  statute  and  is  accepted  in 
a  majority  of  the  States.4 

In  such  an  estate  there  can  be  no  partition,  as  neither  spouse 
has  any  separate  interest.5  Between  them  there  is  but  one 
owner,  and  that  is  neither  the  one  nor  the  other,  but  both  to- 
gether. The  common  law  permitted  the  husband,  for  his  own 
benefit,  during  their  joint  lives,  to  use,  possess  and  control  the 
land  and  take  all  the  profits  thereof,  and  even  to  mortgage  and 
convey  an  estate  to  continue  during  such  joint  lives,  though  he 
could  make  no  disposition  of  the  land  that  would  prejudice 
the  right  of  the  wife  in  case  she  survived  him;  but  later  au- 
thorities hold  that,  from  the  peculiar  nature  of  this  estate,  and 
from  the  legal  relation  of  the  parties,  there  must  be  unity  of 
estate,  unity  of  possession,  unity  of  control,  and  unity  in  con- 
veying and  incumbering  it;  and  it  necessarily  and  logically 
results  that  it  can  not  be  seized  and  sold  upon  execution  for  the 
separate  debts  of  either.6 

In  several  of  the  States  where  the  rule  formerly  prevailed, 
it  has  been  held  that  the  legal  unity  of  husband  and  wife 


4  Arnold  v.  Arnold,  30  Ind.  305 
Hemingway  v.  Scales,  42  Miss.  1 
Washburn  v.  Burns,  34  N.  J.  L.  18 
McCurdy  v.  Canning,  64  Pa.  St.  39 


husband  and  wife  shall  be  their 
common  property;  that  the  matri- 
monial relation  in  respect  to  the 
property   acquired   during  its  exist- 


Fisher  v.  Provin,  25  Mich.  347 ;  Gar-  ence    is    in    fact    a    community,    of 

ner  v.  Jones,  52  Mo.   68;   Robinson  which    each    spouse    is    a    member, 

v.  Eagle,  29  Ark.  202;   Marburg  v.  equally  contributing  by  his   or  her 

Cole,  49  Md.  402;   Hulett  v.  Inlow,  industry  to  its  prosperity,  and  pos- 

57  Ind.   412;    Bertles   v.  Nunan,  92  essing  an  equal  right  to  succeed  to 

N.  Y.  152;  Meyers  v.  Reed,  17  Fed.  he    property    after    dissolution    in 

Rep.  40.  ase  of  one  surviving  the  other.     It 

"5  In  some  of  the  Western  States  extends  to  real  as  well  as  personal 

there  is  a  peculiar  system  of  prop-  property,    and    includes    everything, 

erty    rights     growing    out    of    the  acquired  by  either  husband  or  wife 

marital    relation,    which,    while    it  lining    the    marriage,    except    that 

originated  in  the  civil  law  has  been  which  is  acquired  by  gift,  devise  or 

borrowed,  directly  from  the  Spanish  descent. 

or  Mexican  law.     This  is  known  as  o  Chandler    v.     Cheney.     37     Ind. 

the    doctrine    of    community.     The  391 ;     McDuff     v.     Beauchamp,     50 

underlying    principle    of    the    com-  Miss.  531;  Hulett  v.  Inlow,  57  Ind. 

munity  system   is  that  whatever  is  412. 
acquired    by    the    joint    efforts    of 


298  ABSTRACTS    OF    TITLE. 

lias  been  broken  by  the  "  married  women's  "  acts,  and  that 
the j  take  only  as  tenants  in  common.7  But  estates  which  had 
vested  prior  to  the  acts  in  question  are  not  affected,  changed  or 
modified  by  them.  They  remove  no  disabilities  and  confer 
no  new  rights  in  relation  to  such  estates,  which  can  only  be  con- 
veyed or  incumbered  by  the  joint  act  of  both  parties,  while 
the  survivor  takes  an  absolute  title  to  the  whole  in  case  of 
death,  as  heretofore.8 

The  legislation  of  the  States,  concerning  the  property  rights 
of  married  women,  has  been  very  uniform,  but  the  judicial  con- 
struction of  similar  statutes  has  been  variant  and  contradic- 
tory. In  some  instances,  as  has  been  observed,  courts  have 
decided  that  statutes  making  joint  grantees  tenants  in  com- 
mon, and  giving  to  married  women  the  same  rights  in  property 
as  though  they  were  sole,  have  effectually  destroyed  the  com- 
mon law  unity  of  husband  and  wife,  and  made  them  sub- 
stantially separate  persons  for  all  purposes ;  but  in  a  majority 
of  the  States  the  declared  effect  of  these  statutes  has  been  con- 
fined to  their  express  terms  and  they  have  been  held  to  have 
no  relation  to  or  effect  upon  real  estates  conveyed  to  husband 
and  wife  jointly,  and  that,  notwithstanding  those  statutes,  they 
still  take  as  tenants  by  the  entirety.9 

The  granting  clause  and  habendum  may  serve  in  many  in- 
stances to  determine  the  nature  of  the  estate  granted,  and  it 
is  advisable,  in  all  cases  where  the  deed  purports  to  convey  to 
husband  and  wife,  to  set  out  sufficient  of  both  clauses  to  fully 
disclose  the  nature  of  the  grant.  As  a  general  rule,  no  spe- 
cial language  is  required  to  create  an  estate  of  entirety  and 
where  the  deed  does  not  specify  the  manner  in  which  they  are 
to  hold  the  land  a  tenancy  by  entirety  will  be  presumed.10 
This  conforms  to  the  rule  of  the  common  law  which  provides 

7  Hoffman    v.    Stigers,    28    Iowa,  Robinson    v.    Eagle,    29    Ark.    203; 

302;  Clark  v.  Clark,  56  N.  H.  105;  MeDuff  v.  Beauchamp,  50  Miss.  531. 
Cooper  v.  Cooper,  76  111.   57;   Wal-  io  Stelz    v.     Shreck,     128    N.    Y. 

thall  v.  Goree,  36  Ala.  728.  263;    Phelps   v.    Simons,    159   Mass. 

8Harrer  v.  Wallner,  80  111.  197.  415;    Morrison  v.    Seybold,   92   Ind. 

9Bertles  v.  Nunan,  92  N.  Y.  152;  298;    Bramberry's   Appeal,    156   Pa. 

Bates    v.    Seeley,    46    Pa.    St.    248;  St.  628. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES. 


299 


that  in  a  conveyance  to  both  spouses  they  will  take  as  joint 
tenants  or  tenants  in  common  only  by  express  words,  or  words 
strongly  implying  such  intention.11  Where  the  words  of  the 
grant  clearly  show  that  the  intent  was  to  create  a  tenancy  in 
common  effect  will  be  given  to  it  and  they  will  so  hold.12 

§  242.  Conveyances  Between  Husband  and  Wife.  It 
is  now  well  settled  that  a  conveyance  by  a  husband  to  his 
wife,  without  the  intervention  of  a  third  person  or  trustee, 
where  suitable  and  meritorious,  and  not  in  fraud  of  creditors, 
will  be  upheld  in  equity,13  while  in  those  States  where  the" 
legal  identity  of  husband  and  wife  is  no  longer  recognized, 
such  conveyance  may  be  good  at  law.14  Where  the  ancient 
doctrine  still  obtains,  a  deed  from  husband  to  wife,  without 
the  intervention  of  a  trustee,  is  void  at  law ;  nor  can  a  court  of 
equity  regard  it  as  effectual  to  transfer  the  legal  title.  But 
where  such  deed  is  founded  upon  a  good  and  sufficient  consid- 
eration,15 equity  will  enforce  it  according  to  the  intention  of 
the  parties,  where  the  same  can  be  done  without  prejudice  to 
the  rights  of  others.16 

A  voluntary  conveyance,  that  is,  a  conveyance  without  con- 
sideration, is  a  fraud  upon  the  creditors  of  the  husband,  even 
in  the  absence  of  fraudulent  intent,  and  this  is  especially  true 
when  the  conveyance  leaves  the  husband  insolvent.17  As  a 
rule,  conveyances  of  this  class  call  for  close  scrutiny,  and  fre- 


1 1  Baker  V.  Stewart,  40  Kan.  442 

12  Miner  v.  Brown,  133  N.  Y.  308 
Thornburg  v.  Wiggins,  135  Ind.  178 

1 3  Hunt  V.  Johnson,  44  N".  Y.  27 
Simmons  v.  Thomas,  43  Miss.  31 
Sherman  v.  Hogland,  54  Ind.  578 
Montz  v.  Hoffman,  35  111.  553 
Hoekett  v.   Bailey,   86   111.   76. 

14  Booker  v.  Worrill,  55  Ga.  332 
Dickson  v.  Randal,  10  Kan.  212 
Barclay  v.  Plant,  50  Ala.  509 
Kaufman  v.  Whitney,  50  Miss.  103 

15  Not  necessarily  money:  Wells 
v.  Wells,  35  Miss.  664;  Wilder  v 
Brooks,  10  Minn.  50;  Sims  v.  Rick 


ets,  35  Ind.  181.  When  the  convey- 
ance is  made  as  a  provision  for 
her,  this  will  be  sufficient,  for  the 
duty  of  maintenance  which  a  hus 
band  owes  to  a  wife  is  a  good  con 
sideration  for  a  voluntary  convey 
ance  vesting  title  in  her:  Gill  V 
Wood,  Adm'r,  81  111.  64;  Kellogg  v 
Hale,   108  111.  164. 

i6Huber  v.  Huber,  10  Ohio,  371 
Brookbank  v.  Kernard,  41  Ind.  339; 
Cardell  v.  Ryder,  35  Vt.  47. 

17  Watson  v.  Riskamire,  45  Iowa, 
231. 


300  •  ABSTRACTS    OF    TITLE. 

quently  for  inquiries  in  pais.  Local  statutes  will  go  far  to  set- 
tle many  questions,  yet  there  are  numerous  cases,  even  under 
favorable  statutes,  where  a  knowledge  of  the  circumstances  and 
situation  of  the  parties  must  result  in  the  rejection  of  the  title 
so  offered,  whether  the  conveyance  be  to  the  wife  direct,  or 
through  an  intermediary,  for  it  is  a  fundamental  principle  that 
the  rights  of  creditors  can  not  be  infringed  or  defeated  in  this 
manner.18 

§  243.  Conveyances  by  Married  Women.  JSTo  class  of 
conveyances  call  for  greater  vigilance  or  closer  scrutiny  than 
those  executed  by  married  women.  Though  at  present  a  pro- 
gressive and  liberal  spirit  is  manifest  in  the  enactments  of 
the  various  State  legislatures,  tending  to  remove  entirely  all 
restraints  and  impediments  from  the  free  acquisition  and  alien- 
ation of  real  property  by  married  women,  yet  such  enact- 
ments are  of  very  recent  origin,  and  furnish  no  rule  for  the 
construction  of  conveyances  made  prior  to  the  time  at  which 
they  became  effective.  At  common  law,  a  married  woman 
could  make  no  disposition  of  her  lands  except  by  some  matter 
of  record,  as  a  fine  and  recovery;19  hence  it  follows  that  a 
conveyance  of  her  separate  property  by  a  woman  dming  her 
coverture  would  be  void,  unless  specially  authorized  by  stat- 
ute.20 Such  statutes  now  exist,  however,  and  confer  upon  mar- 
ried women  a  number  of  rights,  which,  being  in  derogation  of 
common  law  principles,  are  strictly  construed  by  the  courts. 
In  all  cases  a  rigid  and  literal  compliance  with  the  statute  is 
essential  to  vest  title.  The  removal  of  the  common  law  dis- 
abilities was  not  accomplished  at  any  one  time,  but  extends 
over  a  series  of  years,  and  an  additional  burden  is  thrown  on 
examiner  and  counsel  by  this  fact.  Different  formalities  were 
requisite  at  different  periods,  and  thorough  knowledge  of  the 
changes  in  the  law  in  this  respect  are  indispensable  to  a  cor- 
rect and  satisfactory  examination. 

By  the  common  law,  upon  the  marriage  of  a  man  with  a 

i8Aultman  v.  Obermeyer,  6  Neb.    260. 

19  1  Blk.  Com.  293;  2  Kent  Com.    150. 

20  Hoyt  v.  Swar,  53  111.  134. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  301 

woman  seized  of  an  estate  of  inheritance,  be  became  seized  of 
the  freehold  jure  uxoris  during  their  joint  lives,  and  if  he  had 
issue  by  her  born  alive,  then  for  his  own  life  absolutely ;  in 
which  latter  case,  if  he  survived  the  wife,  he  was  styled  tenant 
by  the  curtesy.21  Subsequently,  by  statute,  the  husband  was 
given  this  right  of  tenancy  by  the  curtesy,  whether  they  had 
issue  born  or  not.  In  most  of  the  States  tenancy  by  the 
curtesy  is  now  abolished.  A  few  remnants  are  still  observable, 
however,  and  local  law  must  be  resorted  to  for  the  purpose  of 
denning  the  husband's  marital  rights. 

The  first  enactments  looking  toward  the  power  of  alienation 
by  the  wife  provided  that  conveyances  might  be  made  by 
forms  of  deeds  ordinarily  employed,  but  attended  by  many 
formalities,  particularly  in  the  matter  of  acknowledgment  and 
authentication,  it  being  a  vital  principle  always  that  the  hus- 
band join  in  the  conveyance.  Under  these  enactments  the  ac- 
knowledgment of  the  wife  seems  to  have  been  the  operative 
act  to  pass  title  and  not  the  delivery  of  the  deed.  Subse- 
quently the  rigors  of  the  early  rules  became  relaxed,  and,  while 
the  husband  was  still  required  to  join  in  the  execution,  the 
acknowledgment  ceased  to  be  the  effective  means  to  work  the 
transfer  of  title,  and  the  certificate  thereof  was  placed  on  the 
same  footing  as  that  required  for  an  unmarried  woman.  The 
greater  part  of  the  old  formalities,  in  a  majority  of  the  States, 
are  no  longer  requisite,  the  gradual  and  uniform  tendency  of 
modern  legislation  being  to  facilitate  the  power  of  alienation 
by  women  of  their  separate  estates,  though  it  is  still  indispens- 
able, in  many  jurisdictions,  that  the  husband  join  with  the 
wife  in  the  execution  of  the  deed.22 

Legislation,  in  some  of  the  more  advanced  States,  has  had 
the  effect  to  destroy  the  common  law  unity  of  person  in  hus- 
band and  wife,  so  far  as  that  unity  is  represented  by  the  hus- 
band,  and  in  its  stead  a  rule  has  been  introduced,  analogous 
t<<  that  of  the  civil  law,  by  which  the  wife  is  regarded  as  a 

21  1   Blk.  Com.  12G;  2  Kent  Com.       Hollman   v.   De   Nyse,   51    Ala.   95; 
108.  Hand  v.  Winn,  52  Miss.   784;   Arm- 

22  Styles   v.   Probst,   69   111.   382;       strong  V.  Ross,  20  N.  J.  Eq.  109. 


302  ABSTRACTS    OF    TITLE. 

distinct  person  so  far  as  her  separate  property,  contracts,  etc., 
are  concerned,  while  her  conveyances  may  be  made  in  the 
same  manner,  and  with  like  effect,  as  if  she  were  unmarried.23 
Under  these  laws  no  joinder  is  necessary,  other  than  for  the 
purpose  of  waiving  homestead  or  other  marital  rights,  and  for 
all  practical  purposes  of  transfer  of  her  separate  property  the 
husband  and  wife  stand  before  the  law  as  strangers.24 

The  tenancy  by  the  curtesy  is  also  becoming  obsolete  or 
attaches  only  on  the  death  of  the  wife,  and  then  but  to  such 
lands  as  she  died  seized  of,  and  of  which  she  had  made  no  final 
disposition  by  will.  Where,  however,  the  laws  of  a  State  give 
to  the  husband  the  same  right  of  dower  in  the  real  estate  of 
the  wife  that  she  has  in  his  real  estate,  the  effect  of  a  non- join- 
der of  the  husband  in  a  deed  of  the  wife's  lands  has  the  effect 
to  preserve  such  dower  interest,  and  hence  the  joinder  becomes 
necessary  to  a  properly  executed  deed.25 

§  244.  Effect  of  Wife's  Conveyance.  When  a  married 
woman  joins  with  her  husband,  or  otherwise  properly  executes 
a  conveyance  of  lands,  held  by  her  in  her  own  right,  which 
purports  to  convey  the  entire  estate  therein,  she  is  estopped 
from  afterward  setting  up  any  title  to  such  lands,  whether  it 
existed  at  the  time  of  making  such  conveyance,  or  was  subse- 
quently acquired  by  her.26  So,  too,  the  deed  or  other  contract 
of  a  married  woman  respecting  her  separate  property  may 
be  reformed  for  mistake  the  same  as  if  she  were  sole.  Where 
the  deed  is  made  upon  a  good  consideration,  defects  may  be 
remedied,  and  the  deed  specifically  enforced  in  equity.27 

§  245.  Continued  —  Acknowledgment.  The  formalities 
attending  the  acknowledgment  of  married  women's  convey- 
ances now  differ  in  no  material  respect  from  other  deeds, 
though  formerly  they  involved  no  little  circumlocution  and 
ceremony.     It  was,  and,   in  some  few  States,  is  yet,  custom- 

23  Price   V.    Osborn,   32    Wis.    34 ;  25  Huston  v.  Seeley,  27  Iowa,  183. 

Westlake  V.   Westlake,   34   Ohio   St.  26  King  v.  Rea,  56  Ind.  1. 

621 ;  Tomlinson  v.  Matthews,  98  111.  27  Knox   v.    Brady,    74    111.    476; 

178.  Shivers  v.   Simmons,  54  Miss.  520. 

24  Tomlinson  v.  Matthews,  98  111. 
178. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  303 

ary  to  make  a  personal  examination  of  the  wife,  apart  from 
the  husband,  in  which  the  contents  and  nature  of  the  instru- 
ment must  be  made  known  to  her,  and  upon  such  examination 
she  is  required  to  make  a  "  free  and  voluntary  "  acknowledg- 
ment without  "  fear  of  compulsion,"  and  to  further  state  that 
she  does  not  wish  to  retract ;  that  she  resigns  her  dower,  waives 
her  homestead  rights,  etc.,  and,  where  such  is  the  law,  courts 
have  usually  exacted  a  strict  and  literal  compliance,  and  ma- 
terial departures  or  omissions  have  been  held  to  vitiate  the 
conveyance  as  a  means  of  passing  the  wife's  interest  in  the 
property.28  The  law  long  regarded  the  wife  as  under  the  con- 
trol of  the  husband,  and  subject  to  his  coercion.  Hence,  it 
was  not  expected  that  in  his  presence,  and  within  his  hearing, 
she  would  be  likely  to  act  contrary  to  his  wishes,  and  there- 
fore it  required  her  to  signify  her  wish  or  intention  apart 
from  him  before  the  officer  taking  the  acknowledgment.  The 
result  of  this  separate  examination  is  sometimes  embodied  in 
a  separate  certificate,  but  the  usual  method  is  to  state  the  facta 
in  a  separate  clause  attached  to  or  following  the  general  state- 
ment of  acknowledgment.  In  all  cases  the  statement  of  essen- 
tial facts  must  be  clear  and  explicit. 

'  It  will  be  seen  from  the  foregoing  that  the  date  of  execu- 
tion may  be  an  important  factor  in  determining  the  validity 
of  a  married  woman's  deed ;  that  during  certain  periods  it  will 
be  valid  only  when  the  husband  has  joined  in  the  execution 
and  the  certificate  of  acknowledgment  shows  a  special  method 
of  authentication;  that  during  certain  other  periods  while  the 
husband  must  still  be  joined  yet  the  acknowledgment  may  be 
made  as  in  other  cases  of  transfer;  and  that  in  still  other 
periods  a  married  woman's  deed  is  not  distinguished  from  that 
of  her  husband,  requiring  no  joinder  and  no  special  method  of 
acknowledgment.  These  various  periods  will  be  determined 
by  local  statutory  law,  and  both  examiner  and  counsel  must  be 
conversant  therewith. 

IS-Pribble  V.  Hall,  13  Bush  (Ky.),  218;  Petition  of  Bateman,  11  R.  I. 
61;  Looncy  v.  Adamson,  48  Tex.  585;  Little  v.  Dodge,  32  Ark.  453; 
619;    Wright    v.    Dufield,    58    Tenn.        Silliman  v.  Cummins,   13  Ohio,  116. 


304  ABSTRACTS    OF    TITLE. 

§  246.  Release  of  Dower.  The  right  to  dower  is  a  legal 
right  which  can  not  be  barred,  unless  it  has  been  relinquished 
in  the  manner  prescribed  by  law,29  and  this  may  be  accom- 
plished either  by  a  joinder  of  the  wife  in  a  conveyance  by  the 
husband,  or  by  a  separate  deed  of  relinquishment.30 

The  release  which  a  woman  makes  by  joining  with  her  hus- 
band operates  against  her  only  by  estoppel  and  not  by  grant,31 
and,  in  the  absence  of  any  express  legislative  requirement  to 
the  contrary,  the  release  will  be  valid  and  effectual  without 
mention  of  her  name,  or  of  the  dower,  in  the  body  of  the  deed. 
It  being  only  an  inchoate  right,  and  not  a  present  estate,  no 
words  of  grant  are  necessary.32  K~or  is  it  necessary  that  there 
should  be  a  consideration  moving  to  her,  and  though  she  might 
insist  on  a  consideration  inuring  solely  to  herself  as  a  condition 
of  such  release,  yet,  failing  to  exact  this,  her  release  will  be 
good  if  supported  by  an  adequate  consideration  moving  to  the 
husband  alone.33  Where  a  wife  joins  with  her  husband  in  a 
conveyance  of  his  lands,  which  is  properly  executed  by  her, 
is  effectual  and  operative  against  him,  and  is  not  super- 
seded or  set  aside  as  against  him  or  his  grantee,  her  in- 
choate right  of  dower  is  thereby  forever  extinguished  for  all 

29  Davis  v.  McDonald,  42  Ga.  205.  tion  is  brought  by  the  wife,  for  the 

"  A  divorce  from  the  bonds  of  mat-  misconduct     of    the     husband,     her 

rimony,"    observes    Mr.    Washburn,  right   of    dower    continues    notwith- 

"  always  defeats  the  right  of  dower,  standing   the   divorce.     This   is   the 

unless  it  be  saved  by  the  statute  au-  rule    in    Illinois   and    several    other 

thorizing  such  divorce;   for  at  com-  States. 

mon  law,  in  order  to  entitle  a  wid-  30  Sykes  V.  Sykes,  49  Miss.   190; 

ow   to   dower,   she   must   have   been  Shepard   V.   Howard,   2   N.   H.   507; 

the  wife  of  the  husband  at  the  time  Thatcher  V.  Howland,  2  Met.  41. 
his  decease":    1  Wash.  Real.  Prop.,  31  Mallony  v.  Horan,  12  Abb.   (N. 

*  196,  and  see  also  Bish.  Mar.  &Div.,  Y.)    Pr.   N.    S.    289;    do.   49   N.   Y. 

§  661;   2  Black.  Com.   130;  4  Kent  111. 

Com.   54;   Whitsell  v.  Mills,  6   Ind.  32  Johnson  v.  Montgomery,  51  111. 

229;     McCraney     v.     McCraney,     5  185;   Frost  v.  Deering,  21  Me.  156; 

Iowa,   232.     A  reasonable   provision  Sterns    v.    Swift,    8    Pick.    532,    but 

out  of  the  husband's  estate  is  usual-  compare    McFarland    v.    Febiger,    7 

ly    given    in    lieu    of    dower.     See  Ohio,  194. 

"  Chancery  Proceedings,"  infra.     In  33  Bailey  v.  Litten,  52  Ala.  282. 

some  States,  however,  where  the  ac- 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  305 

purposes.34  The  conveyance,  however,  must  be  of  the  free- 
hold or  fee,35  and  such  as  would  destroy  the  seizin  of  the  hus- 
band, while  the  right  is  of  such  a  nature,  when  inchoate,  that 
1  it  can  not  be  itself  transferred  by  any  of  the  instruments  of 
conveyance  in  common  use,36  and  can  be  released  only  to  the 
owner  of  the  fee,  or  to  some  one  in  privity  with  the  title  by 
his  covenants  of  warranty.37 

The  release  is  often  accomplished  by  a  separate  instrument 
of  relinquishment,  but  as  this  deed  acts  only  by  way  of  estop- 
pel, no  particular  form  of  words  is  necessary,  and  any  apt 
words  indicating  the  intent  will  suffice.38  The  abstract  of 
such  an  instrument  would  consist  mainly  of  its  recitals,  thus : 


Clio  S.   Greene 

to 

James   W.  P enfold. 


"Release  of  Dower.39 
Dated  Nov.   6,  1851. 
Recorded  Nov.  7 ',  1851. 
Vol.  "  B,"  page  379. 


"  For  a  valuable  consideration,"  releases  all  right  and  claim 
of  dower  in  and  to  a  certain  piece  of  land  in  the  South-West 
fractional  quarter  of  Section  19,  Town  2  North,  Range  22, 
East — ,  described  in  a  conveyance  by  "my  husband,"  Patrick 
P.  Greene,  to  said  James  W.  Penfold,  and  recorded  in  Vol. 
"  ~B,"  page  12 % 

Acknowledged  Nov.  6,  1851. 

Whenever  practicable,  let  the  deed  of  relinquishment  imme- 
diately follow  the  husband's  deed,  irrespective  of  intervening 
conveyances,  or  if  to  a  grantee  of  the  husband's  grantee,  then 
immediately  after  his  deed,  the  object  being  to  keep  the  dower 
interest  closely  associated  with  the  fee.  This  method  of  ar- 
rangement will  be  highly  appreciated  by  counsel. 

34  Elmdorf  v.  Loekwood,  57  N.  Y.  38  Gillilan  v.  Swift,  21  N.  Y.  Sup. 
322.  Ct.   574. 

35  Sykes  v.  Sykes,  49  Miss.  190.  39  Deeds    of    this    character    are 

36  Marvin  v.  Smith,  46  N.  Y.  571.  more   properly   "  Surrenders  "    than 

37  La  Framboise  v.  Crow,  56  111.  "  Releases,"  but  this  is  the  name 
197;  Reed  v.  Ash,  30  Ark.  775.  they  have  acquired. 

20 


COO  ABSTRACTS    OF    TITLE. 

§  247.     Joint   Tenancies   and    Tenancies   in    Common. 

Where  several  persons  purchase  laud,  and  advance  the  money 
in  equal  proportions,  and  take  a  conveyance  to  them  and  their 
heirs,  this,  at  common  law,  is  a  joint  tenancy ;  that  is,  a  pur- 
chase by  them  jointly  of  the  chance  of  survivorship,  which  may 
happen  to  the  one  of  them  as  well  as  to  the  other. 

The  doctrine  of  survivorship,  however,  is  not  in  accordance 
with  the  genius  of  our  institutions,40  and  this  incident  of 
estates  has  been  generally  abolished  in  the  United  States,  ex- 
cept in  a  few  instances,  while  the  extent  of  its  operation  has 
everywhere  been  very  much  restricted.  Conveyances  to  two  or 
more  persons  are  now  usually  held  to  create  a  tenancy  in  com- 
mon, unless  the  language  used  clearly  and  manifestly  shows 
an  intention  to  create  a  joint  tenancy,  in  which  event  the  in- 
tention may  be  given  effect.  But  even  where  this  is  allowed 
a  joint  tenant,  by  deed,  may  alienate  his  undivided  interest  and 
his  grantee  will  hold  as  a  tenant  in  common  with  the  others. 

Tenants  in  common  are  considered  as  solely  and  severally 
seized ;  they  have  several  and  distinct  freeholds,  and  there  is 
no  privity  of  estate  between  them.41  They  may  convey  and 
dispose  of  their  undivided  interests  to  a  stranger  and  the  same 
may  be  taken  and  sold  on  execution,42  the  purchaser  simply 
taking  the  same  position  in  relation  to  the  co-tenants  as  was 
occupied  by  the  grantor  or  judgment  debtor ;  43  but  one  tenant 
in  common,  owning  an  undivided  interest,  can  not  convey  to  a 
stranger  a  certain  portion  of  the  tract  in  common,  and  put  the 
purchaser  in  possession  of  the  portion  conveyed,44  unless  the 
other  tenants  confirm  the  conveyance.45 

§  248.  Partition  Deeds.  Where  property  is  owned  by 
a  number  of  persons  in  common,  they  may,  by  properly  exe- 
cuted deeds,   convey  to  each  other   in  severalty   specific   por- 

40  Burnett  V.  Pratt,  22  Pick.  557.  108;  Hartford,  etc.,  Ore  Co.  v.  Mil- 

41  Burr  V.  Mueller,  65  111.  258.  ler,  41   Conn.    112.     Compare  Barn- 

42  Butler  V.  Roys,  25  Mich.  53.  hart  v.  Campbell,  50  Mo.  597. 

43  Fischer  v.  Eslaman,  68  111.  78.  45  Hartford,  etc.,  Ore  Co.  v.  Mil- 
44Mattox   i?'.   Hightshue.    30    Ind.  ler,  41  Conn.  112. 

95;  Shepardson  v.  Rowland,  28  Wis. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  307 

tions  of  what  was  formerly  held  jointly,  and  where  the  course 
of  title  clearly  shows  the  origin  of  their  property  rights  and  the 
proper  measure  of  their  title,  the  deeds  so  executed  are  evi- 
dences of  title  of  the  highest  order.  This  will  be  the  case 
where  land  is  held  by  partners,  and  all  purchasers  by  deed  or 
will  in  which  they  are  specifically  designated,  but  not  always 
when  the  claim  is  by  descent.  In  the  latter  event  a  proper 
proof  of  heirship  is  essential,  and  unless  this  appears  the  title 
is  not  marketable. 

A  partition  deed  is  mutual,  unless  otherwise  specified,  the 
interchange  of  interests  forming  the  consideration.  In  ab- 
stracting same,  all  the  material  recitals  should  be  fully  stated, 
and  the  method  of  division  minutely  described.  The  ordinary 
covenants  will  not,  as  a  rule,  be  found,  but  a  mutual  covenant 
of  non-claim  and  warranty  against  their  own  acts,  and  those 
claiming  under  them,  is  usually  inserted  in  their  place.  The 
deed  shoud  be  signed  and  acknowledged  by  both  parties  to  the 
transaction  and  is  presumably  interchangeably  delivered.  A 
deed  possessing  these  and  other  requisites  might  be  shown  in 
the  abstract  as  follows : 


Andrew  Barlow  46 

to  and  with 

Charles   Dalton. 


Partition  Deed. 
Dated,  etc. 


Recites,  that  said  parties  are  now  seized  in  fee  simple,  as 
tenants  in  common  of  the  following  described  real  estate  [de- 
scribing same],  and  Jiave  agreed  to  make  a  full,  just,  and 
equal  partition  and  division  between  them,  of  and  in  the  afore- 
said tract,  of  and  according  to  their  respective  shares  and  inter- 
est therein,  in  manner  following  [describing  same]. 

And  said  Andrew  Barlow  gives,  grants,  allots,  assigns,  sets 
over,  releases  and  confirms  to  said  Charles  Dalton  the  said 
first  described  piece  or  allotment  of  land,  to  have  and  to  hold 
■■■'■■     *     *     *     *     fa  severalty,  as  Jiis  fuU  share  therein. 

40  When    the    course    of    title    is       veyanee    in    this    abstract     is     sup- 
through     Andrew     Barlow,     simply        posed  to  be  from  Charles  Dalton. 
■   the   names.     The   next   con- 


308  ABSTRACTS    OF    TITLE. 

And  Charles  Dalton  gives,  grants,  etc.  [describing  his  allot- 
ment]. 

And  said  Andrew  Barlow  covenants  that  said  Charles  Dal- 
ton shall  freely,  etc.,  hold  and  enjoy  said  first  described  piece 
or  allotment  of  land  without  molestation,  interruption,  or  de- 
nial of  him,  said  Andrew  Barlow,  or  any  person  claiming  by, 
through,  or  under  him.  (And  said  Charles  Dalton  covenants 
the  same  in  regard  to  said  second  described  piece  or  allotment 
of  land.) 

Signed  and  acknowledged  by  both  parties  August  1,  1881. 

§  249.  Partnership  Conveyances.  Lands  held  by  sev- 
eral persons  as  partners,  purchased  by  them  with  partnership 
funds  and  for  partnership  purposes,  are  regarded  in  a  some- 
what different  light  from  lands  held  by  an  individual,  or  even 
by  tenants  in  common  in  their  ordinary  relation,  and  for  cer- 
tain purposes  may  be  treated  as  personal  property.  Even 
though  the  title  be  taken  in  the  individual  name  of  one  or 
both  partners,  the  land  will,  in  equity,  be  treated  as  personalty 
so  far  as  is  necessary  to  pay  the  debts  of  the  partnership  or 
adjust  the  rights  of  the  partners.  No  other  or  different  for- 
malities are  necessary  in  its  acquisition  than  those  observed 
in  the  case  of  ordinary  deeds  of  conveyance.  Yet,  though  the 
conveyance  to  them  is  in  form  such  as  to  make  them  tenants 
in  common,  still,  in  the  absence  of  an  express  agreement,  or  of 
circumstances  showing  an  intent  that  the  estate  conveyed 
shall  be  held  for  their  separate  use,  it  will  be  considered  and 
treated  in  equity  as  vesting  in  them  in  their  partnership  ca- 
pacity, and  clothed  with  an  implied  trust  that  they  hold  it 
until  the  purposes  for  which  it  was  purchased  shall  be  accom- 
plished, and  that  it  shall  be  applied,  if  necessary,  to  the  pay- 
ment of  the  partnership  debts. 

Upon  the  dissolution  of  the  partnership  by  the  death  of  one 
of  the  partners,  the  survivor  has  an  equitable  lien  upon  such 
real  estate  for  his  indemnity  against  the  debts  of  the  firm,  and 
for  securing  the  balance  that  may  be  due  to  him  from  the  de- 
ceased partner  on  settlement  of  the  partnership   accounts  be- 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.         309 

tween  them,  and  the  widow  and  heirs  of  such  deceased  partner 
have  no  beneficial  interest  in  such  real  estate  until  the  sur- 
viving partner  is  so  indemnified.47  The  legal  title,  it  is  true, 
is  cast  upon  the  heirs  as  in  any  other  case  of  tenancy  in  com- 
mon, but  only  becomes  certain  after  all  the  debts  of  the  firm 
are  paid.48  As  the  widow  and  heirs  can  claim  only  in  the 
right  of  the  husband  and  father,  such  derivative  right  in 
equity  will  extend  no  further  in  behalf  of  the  wife  and  chil- 
dren than  that  of  the  partner  from  whom  it  is  derived. *1J  A 
surviving  partner,  in  a  proper  case,  may  sell  the  real  estate 
of  the  firm,  and  though  he  can  not  convey  the  legal  title  which 
passed  to  the  heir  or  devisee  of  the  deceased  partner,  his  salo 
will  yet  invest  the  purchaser  with  the  equitable  ownership  of 
all  the  land  and  the  right  to  compel  a  conveyance  of  the  title 
from  the  heir  or  devisee  in  a  court  of  equity.50 

Conveyances  of  partnership  realty  should  be  executed  by 
each  and  all  of  the  partners  in  the  same  manner  as  deeds  by 
tenants  in  common,  and  it  seems  that  a  deed  executed  by  one 
partner  only  in  the  name  of  the  firm  will  convey  only  the 
undivided  portion  of  the  estate  owned  by  such  partner,51  or 
rather  only  a  contingent  right  to  such  part  after  the  debts  aro 
paid,  while  the  authorities  are  unanimous  in  declaring  that  a 
firm  name,  as  "  Jno.  Smith  &  Co.,"  is  not  a  proper  legal  desig- 
nation either  of  grantor  or  grantee,  and  is  effective  in  either 
case  only  for  or  against  the  persons  specifically  named.52 

47  2  Sugd.  V.  and  P.  427  (Per-  52  Arthur  v.  Webster,  22  Mo.  378 ; 
kins'  notes)  ;  Dyer  v.  Clark,  5  Met.  Winter  v.  Stock,  29  Cal.  407;  Gos- 
562;  Cobble  v.  Tomlinson,  50  Ind.  sett  V.  Kent,  19  Ark.  607;  Barnett 
550.  v.  Lachman,  12  Nev.  361.     A  sealed 

48  Collins  v.  Warren,  29  Miss.  instrument  (deed  or  other  special- 
230;  Holland  v.  Fuller,  13  Ind.  195;  ty),  executed  by  one  partner  in  the 
Shearer  v.  Shearer,  98  Mass.  111.  name   of  the   firm,   may  be  treated 

40  Burnside    V.    Merrick,    4    Met.  as    the    deed    of    all    the    partners, 

537.  upon  proof  that  prior  to  the  execu- 

50  Dupuy  v.  Leavenworth,  17  Cal.  tion  the  others  had  authorized  him 
262;  Shanks  v.  Klein,  104  U.  S.  18.  to  execute  the  instrument,  and  after 

51  Dillon  v.  Brown,  11  Gray,  179.  execution,  with  full  knowledge,  ac- 
NTor  will  it  render  the  other  part-  quiesced  in  what  he  had  done:  Gib- 
ners  liable  on  the  covenants:  Hob-  son  v.  Warden,  14  Wall.  (U.  S.) 
son  v.  Porter,  2  Col.  T.  28.  244;    Cady    v.    Shepard,    11    Pick. 


310  ABSTRACTS    OF    TITLE. 

§  250.  Corporate  Conveyances.  There  are  three  classes 
of  corporations  recognized  by  our  laws :  Public  municipal 
corporations,  corporations  technically  private,  but  of  a  quasi 
public  character,  as  railroads,  etc.,  and  corporations  strictly 
private,  all  of  whom,  under  general  or  special  conditions,  have 
the  power  to  acquire,  hold,  and  transmit  the  title  to  land. 
Though  regarded  in  law  as  persons  for  certain  purposes,  they 
are  not  entitled  to  the  privileges!  of  citizens,53  as  guaranteed 
by  the  Federal  Constitution,  neither  in  the  State  of  their  crea- 
tion, nor  in  other  States  which  they  may  enter  for  the  purpose 
of  business.  Their  right  to  acquire  and  transmit  property  is 
a  statutory  one  in  the  home  State,  and  in  a  foreign  State  is 
based  upon  the  comity  between  the  States.  In  the  latter  case 
it  is  a  voluntary  act  of  grace  of  the  sovereign  power,54  and  is 
inadmissible  when  contrary  to  its  policy  or  prejudicial  to  its 
interests.55 

A  corporation  has  only  such  powers  as  its  charter  gives  it, 
either  expressly,  or  as  incident  to  its  existence,  and  in  deter- 
mining whether  a  given  act  is  within  the  power  of  a  corpora- 
tion, it  is  necessary  to  consider,  first,  whether  the  act  falls 
within  the  powers  expressly  enumerated  in  the  charter  or  de- 
fined by  law;  and  second,  whether  it  is  necessary  to  the  exer- 
cise of  one  of  the  enumerated  powers,56  and  these  apply  both 

(Mass.)    400;    Peine   v.    Weber,    47  particularly  to  controversies  in  the 

111.    45;    the    difficulties    attending  Federal  Courts. 

such    proof    will    be    readily    seen,  54  Ducat  v.  Chicago,  48   111.  172; 

however,  and  while  by  no  means  in-  Ins.  Co.  V.  Commonwealth,  5   Bush 

surmountable   they    are    of    such    a  (Ky. ),  68;  State  v.  Fosdick,  21  La. 

nature   as    to   make   it    almost    im-  Ann.  434. 

perative  on  counsel  to  demand  that  55  Carroll   v.    East   St.    Louis,   67 

the  title  be  assured  by  a  better  deed.  111.  568. 

53  Although  a  corporation  is  not  56  Vandall  v.  Dock  Co.,  40  Cal. 
a  citizen  within  the  several  provi-  83;  Pullan  v.  R.  R.  Co.,  4  Biss.  35; 
sions  of  the  Constitution,  yet  where  Weckler  v.  Bank,  42  Md.  581 ;  Mat- 
rights  of  action  are  to  be  enforced  thews  v.  Skinner,  62  Mo.  329.  In 
by  or  against  a  corporation,  it  determining  whether  a  corporation 
will  be  considered  as  a  citizen  of  ran  make  a  particular  contract,  it 
the  State  where  it  was  created:  must  be  considered  whether  its 
Railway  Co.  v.  Whitton,  13  Wall.  charter,  or  some  statute  binding 
270.    This,    however,    applies    more  upon    it,    forbids    or   permits    it   to 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  311 

to  the  acquisition  and  transfer  of  real  property.57  Land  which 
a  corporation  can  not  hold  in  its  own  name  it  can  not  hold 
in  the  name  of  another,  and  when  a  corporation  can  not  hold 
the  legal  title  to  land,  it  can  not  take  a  beneficial  interest  in 
it.58 

It  would  seem,  therefore,  that  the  organic  act,  or  some 
portion  thereof,  should  supplement  every  conveyance  purport- 
ing to  pass  title  to  a  corporation  as  constituting  one  of  the 
strongest  assurances  of  the  validity  of  subsequent  convey- 
ances,59 but  in  practice  this  is  seldom  done,  though  the  au- 
thority to  make  a  deed  frequently  constitutes  one  of  the  re- 
citals in  conveyances  from  corporations.  As  corporations,  are 
now  almost  universally  organized  under  general  laws,  which. 
define  their  powers  in  this  respect,60  the  matter  presents  fewer 
intricacies  than  formerly,  yet  as  a  rule,  whenever  the  title 
under  examination  passes  through  a  corporation,  and  the 
deeds  furnish  no  internal  evidence  to  demonstrate  their  valid- 
ity, a  requisition  should  be  made  by  the  examining  counsel 
for  such  information  as,  in  his  opinion,  may  be  necessary  to 

show  same. 

\ 
make  such  a  contract;  and,  if  the  -will  usually  be  experienced  in  de- 
charter  and  valid  statutory  law  are  termining  questions  of  capacity, 
silent  upon  the  subject,  whether  The  suggestion  of  the  text  applies 
the  power  to  make  such  a  contract  more  particularly  to  corporations  or- 
may  not  be  implied  on  the  part  of  ganized  during  the  period  when  spe- 
the  corporation  as  directly  or  inci-  cial  legislation  of  this  kind  was  per- 
dentally  necessary  to  enable  it  to  mitted.  In  the  case  of  domestic 
fulfill  the  purpose  of  its  existence,  corporations  the  published  volumes 
or  whether  the  contract  is  entirely  of  private  and  local  laws  will  sup- 
foreign  to  that  purpose:  Weckler  ply  the  desired  information.  In 
v.  Bank,  42  Md.  5S1 ;  Watson  V.  case  of  foreign  corporations  a 
Water  Co.,  36  N.  J.  L.   195.  requisition   for   further  information 

57  Franco- Texan  Land  Co.  v.  Me-  will   often  become  necessary. 
Cormick,  85  Tex.  416.  60  The  filing  of  articles  of  incor- 

58  Coleman  v.  R.  R.  Co.,  49  Cal.  poration  in  one  of  the  county  of- 
517.  fices  and  with  the  Secretary  of  State 

59  At  the  present  time  corpora-  is  now  the  usual  manner  of  organ- 
tions  are  organized  under  general  izing  corporations.  The  law  and  the 
lawa  which  define  their  powers  and  articles  so  filed,  taken  together,  are 
capacities.  Hence,  in  the  case  of  considered  in  the  nature  of  a  grant 
modern    corporations    no    difficulty  from  the  State,   and  constitute  the 


312  ABSTRACTS    OF    TITLE. 

§  251.  Statutes  of  Mortmain.  The  common  law  right 
of  corporations  to  take  and  hold  real  estate  has  been  re- 
strained in  England]  from  an  early  day,  by  a  series  of  laws 
called  statutes  of  mortmain,  which  were  passed  to  repress 
the  grasping  spirit  of  the  church  which,  it  was  claimed,  was 
absorbing  in  perpetuity  the  best  lands  in  the  kingdom.61 
"They  were  called  statutes  of  mortmain,"  observes  an  eminent 
writer,  "  because  designed  to  prevent  the  holding  of  lands  by 
the  dead  clutch  of  ecclesiastical  corporations,  which  in  early 
times  were  composed  of  members  dead  in  law,  and  in  whose 
possession  property  was  forever  dead  and  unproductive  to  the 
feudal  superior  and  the  public."  °2  This  system  of  restraint^ 
though  originally  confined  to  religious  corporations  was  sub- 
sequently extended  to  civil  or  lay  corporations. 

The  English  statutes  of  mortmain,  though  they  have  been 
held  in  some  of  the  States  to  be  the  law,  so  far  as  applicable  to 
present  political  conditions,  have  not  been  re-enacted  in  this 
country;  yet  the  policy  has  been  retained  and  is  manifest  in 
the  general  and  special  enactments  of  every  State.  To  pre- 
vent monopolies,  and  to  confine  the  action  of  incorporated 
companies  strictly  within  their  proper  sphere,  the  acts  incor- 
porating them  almost  invariably  limit  not  only  the  amount  of 
property  they  shall  hold,  but  frequently  prescribe  in  what  it 
shall  consist,  the  purposes  for  which  it  shall  alone  be  pur- 
chased and  held,  and  the  mode  in  which  it  shall  be  applied  to 
effect  those  purposes.  Special  legislation  for  corporations,  in 
most  of  the  States,  has  been  abolished,  and  companies  are  in- 
corporated under  general  laws  of  uniform  application,  but  the 
policy  above  outlined  is  still  vigorously  maintained. 

§  252.  Power  of  Acquisition  —  User.  There  is  a 
broad  distinction  between  the  power  of  acquisition  of  prop- 
erty and  the  use  to  which  it  is  to  be  applied,  and  the  effect  of 

charter  of  the  company:    Abbott  V.  412;    State   V.    Leffingwell,    54   Mo. 

Smelting   Co.,   4   Neb.   416;    Mining  458. 

Co.  v.  Herkimer,  46  Ind.  142 ;  Whet-  61  1  Black  Com.  479. 

stone  v.  Ottawa  University,  13  Kan.  62Ang.  &  Ames  on  Corp.,  §  148; 

320;  Hunt  v.  Bridge  Co.,   11  Kan.  3  Co.  Lit.  2  b.;   1  Black  Com.  479. 


SPECIAL    CLASSES    OP    INDIVIDUAL   CONVEYANCES.         313 

the  distinction  upon  the  rights  of  third  persons  is  equally 
marked.  Where  the  charter  of  a  corporation,  or  the  general 
law  under  which  it  is  organized,  prohibits  the  purchase  of 
lands  for  any  purpose,  a  deed  to  it  would  be  an  utter  nullity, 
as  its  capacity  to  take  is  determined  by  the  instrument  or  act 
which  gave  it  existence;63  but,  having  the  power  to  purchase 
and  take,  though  for  a  specific  purpose  only,  it  becomes  fully 
invested  with  title  by  a  deed  properly  executed,  even  though 
the  property  be  acquired  and  used  for  a  purpose  forbidden  by 
the  organic  act.64  As  a  rule,  deeds  to  and  from  corporations 
are  effective  to  convey  the  title  to  the  lands  therein  described, 
and  titles  so  derived  can  not  be  impeached  collaterally,  nor 
their  validity  be  questioned  by  third  persons,  on  the  ground 
that  the  transaction  was  beyond  the  corporate  power;  for 
where  a  corporation  exceeds  its  powers,  the  remedy  is  by  a 
direct  action  in  the  name  of  the  State,65  who  alone  can  inter- 
fere.60 Parties  dealing  with  corporations  are  chargeable,  how- 
ever, with  notice  of  the  limitations  imposed  by  the  charter 
upon  their  powers.67 

§  253.     Municipal      Corporations.    Municipal      corpora- 
tions are  creatures  of  the  statute,  and  can  exercise  only  such 
.powers  as  are  expressly  conferred,  or  such  as  arise  by  implica- 
tion from  general   powers   granted.      Where   the   charter   em- 
powers a  municipal  corporation  to  buy  and  hold  real  property, 

63  Leazure  v.  Hillegas,  7  S.  &  R.  private  suitors  on  conveyances  or 
(Pa.)  319.  Yet  whether  real  estate  other  unauthorized  acts  of  a  cor- 
has  heen  acquired  in  excess  of  the  poration  is  where  such  attack  is  au- 
corporate  powers  to  take  and  hold  thorized  by  express  legislative  per- 
can  not  be  made  a  question  by  any  mission.  See,  Martindale  v.  R.  R. 
party,  except  the  State,  who  alone  Co.,  60  Mo.  508;  Bank  v.  Mat- 
must  assert  her  policy   in   that  re-  hews,  98  U.  S.  621. 

gard :   Alexander  v.  Tolleston  Club,  66  DeCamp   v.  Dobbins,   29   N.   J. 

110  111.  65;   Baker  v.  Neff,  73  Ind.  Eq.    36;    Hayward   v.   Davidson,   41 

68.  Ind.    214.     The    doctrine    of    ultra 

64  Hough  v.  Land  Co.,  73  HI.  23.  vires   is   generally   applied    only   to 

65  Smith  v.  Sheeley,  12  Wall.  358 ;  such  contracts  as  remain  wholly 
Kelly  v.  Transportation  Co.,  3  Oreg.  executory:  Thompson  V.  Lambart, 
189;   Conn.,  etc.,  Ins.  Co.  v.  Smith,  44  Iowa,  239. 

117  Mo.  261.     The  only  exception  to  07  Franklin  Co.  v.  Lewiston  Inst, 

the  rule  which  prohibits  attack  by       for  Savings,  68  Me.  43. 


314  ABSTRACTS    OF    TITLE. 

it  must  be  understood  to  be  purchases  made  in  the  ordinary 
way,  and  for  corporate  purposes  only ;  and  a  grant  to  purchase 
for  particular  purposes  would  seem  to  be  a  limitation  on  the 
power  of  such  corporations,  and  to  exclude,  by  necessary  im- 
plication, all  purchases  for  mere  speculation  and  profit. 
"  Power  to  purchase  for  speculative  purposes,"  says  Scott,  J., 
"  is  not  among  the  usual  powers  bestowed  on  municipal  cor- 
porations, nor  does  such  power  arise,  by  implication,  from  any 
of  the  ordinary  powers  conferred  on  such  corporations."  GS 

Municipal  corporations,  under  a  general  grant  of  power  to 
buy  and  hold  land,  may  purchase,  within  the  corporate  limits, 
such  property  as  may  be  necessary  for  corporate  purposes,  and 
may  even  buy  and  hold  land  beyond  the  corporate  limits,  for 
the  location  of  cemeteries,  pest  houses,  drainage,  etc.,69  but  in 
the  absence  of  any  enabling  statute,  can  not  become  the  pur- 
chaser of  lands  or  lots  at  a  tax  sale,  and  on  compliance  with 
the  statute  in  that  regard  obtain  a  deed  that  will  invest  such 
corporations  with  the  title  to  the  property.70 

Deeds  by  a  municipal  corporation  stand  upon  a  somewhat 
different  footing  from  private  corporations  generally,  and  for 
their  proper  proof  it  is  necessary  that  the  authority  for  their 
execution  should  also  appear.71  This  authorization  will  usu- 
ally take  the  form  of  a  resolution  by  the  municipal  legislature. 
The  resolution  should  always  appear  in  the  abstract  in  connec- 
tion with  the  deed  made  pursuant  thereto.  Practical  exam- 
ples will  be  given  further  on. 

§  254.  Conveyances  to  Corporations.  By  common 
law,  and  in  the  absence  of  statutory  prohibitions,  corporations 
aggregate,72  in  whatever  manner  created,   can  take,   like  nat- 

68  City  of  Champaign  V.  Harmon,  Mun.  Corp.  §  435;  and  see  Denton 
98  111.  491;  and  see  2  Dill.  Mun.  v.  Jackson,  2  Johns.  Ch.  336; 
Corp.,  §  433.  Chambers  v.  St.  Louis,  29  Mo.  543. 

69  2  Dill.  Mun.  Corp.,  §  435.  The  70  City  of  Champaign  v.  Harmon, 
general  rule  is  that  municipal  cor-  98  111.  491. 

porations  can  not  purchase  or  hold  71  Ward  v.  Lumber  Co.,   70  Wis. 

real  estate  beyond  their  territorial  445. 

limits,    unless    this    power    is    con-  72  Corporations  sole,  though  eom- 

ferred   by  the  legislature:     2   Dill.  paratively  common  in  England2  are 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  315 

ural  persons,  by  every  method  of  conveyance  known  to  tlie  law.73 
j^o  particular  words  of  grant  are  necessary,  other  than  those 
in  common  use  in  conveyances  to  natural  persons,  though  it 
is  usual  to  insert,  as  a  word  of  limitation,  the  term  "  succes- 
sors." The  word  is  not  necessary,  however,  to  convey  a  fee, 
independent  of  the  statute  which  provides  for  a  fee,  for,  ad- 
mitting that  such  a  grant  is  strictly  only  a  life  estate,  yet  as 
a  corporation,  unless  of  limited  duration,  never  dies,  such 
estate  for  life  is  perpetual,  or  an  equivalent '  to  a  fee  simple, 
and  therefore  the  law  allows  it  to  be  one.74 

As  between  the  parties,  where  the  corporation  is  authorized 
by  its  charter  or  the  law  under  which  it  is  organized,  to  pur- 
chase land,  receive  conveyances  thereof,  and  hold  title  to  the 
same,  but  is  prohibited  from  purchasing  and  holding  for  any 
other  than  a  prescribed  purpose,  the  question  of  the  validity 
of  the  title  conveyed  can  not  be  inquired  into.  The  title  vests 
in  the  corporation  by  a  deed  duly  executed,  and  the  question  as 
to  whether  the  corporation  has  exceeded  its  power  can  be 
raised  only  by  the  State  or  by  a  stockholder.75  A  distinction 
must,  however,  be  observed  between  the  power  of  acquisition 
and  the  use  to  which  the  land  is  to  be  applied,  but,  as  a  general 
rule,  a  proper  and  legitimate  purpose  is  always  presumed  on 
the  part  of  a  corporation  in  accepting  a  conveyance  of  land.76 

§  255.  Conveyances  by  Corporations.  All  private  cor- 
porations have  an  incidental  right  to  alien  or  dispose  of  their 
lands,  without  limitation  as  to  objects,  unless  restrained  by  the 
act  of  incorporaton,  or  by  statute;  and  the  power  to  mortgage, 

seldom  created  in  the  United  States.  74  Ang.  &  Ames  on  Corp.   141 ;  2 

The  general   laws  for  the  organiza-  Blk.   Com.   109;    Overseers  V.   Scars, 

tion  of  corporations  all  provide  for  22    Pick.    122;    Congregational    So- 

a  number  of  corporators.     But,  un-  ciety  v.  Stark,  34  Vt.  243. 

der    former   laws    instances    of    sole  75  Hough  v.  Land  Co.,  73  111.  23; 

corporations   will   be    found.     Thus,  Smith    v.    Sheeley,    12    Wall.    358; 

"The  Catholic  P.Uhop  of  Chicago"  Baker  v.  Nefl",  73  Ind.  68;  Kelly  v. 

is  a  corporation  sole  by  virtue  of  a  Transportation  Co.,  3  Oreg.  189. 

special  act  of  Legislature."  70  Life  Ins.  Co.  V.  Smith,  117  Mo. 

73  Am.  Bible  Society  v.  Sherwood,  261. 
4  Abb.    (X.  Y.)    App.  227;   Ang.  & 
Ames  on  Corp.   140. 


316  ABSTRACTS    OF    TITLE. 

when  not  expressly  given  or  denied,  will  be  regarded  as  an  in- 
cident to  the  power  to  acquire  and  hold  land,  and  to  make  con- 
tracts concerning  same.77  In  general,  they  convey  their  land 
in  the  same  manner  as  individuals,  the  laws  relating  to  the 
transfer- of  property  being  equally  applicable  to  both,78  and  the 
only  features  that  particularly  distinguish  this  class  of  convey- 
ances from  individual  deeds  are  in  the  execution  and  acknowl- 
edgment. 

The  orderly  parts  of  the  deed  follow  closely  the  ordinary 
deeds  in  common  use,  the  full  name  of  the  corporation  appear- 
ing in  the  premises  as  the  grantor,  while  the  body  of  the  deed 
frequently  contains  a  recital  showing  the  inducement  of  the 
instrument  and  the  authority  for  its  issuance.  The  execution, 
in  most  of  the  States,  is  regulated  by  express  statute  which  pro- 
vides for  a  specific  method  of  signing  and  sealing  and  sometimes 
for  acknowledgment  as  well.  The  seal  is  usually  indispensable 
to  a  perfect  execution  and  its  absence  is  a  defect  that  calls  for 
notice.  ''  A  corporation,"  says  Blackstone,  "  being  an  invisible 
body,  can  not  manifest  it&  intentions  by  any  personal  act  or 
discourse ;  it  therefore  acts  and  speaks  by  its  common  seal.  For, 
though  the  particular  members  may  express  their  private  con- 
sents to  riy  act,  by  words  or  signing  their  names,  yet  this  does 
not  bind  the  corporation;  it  is  the  fixing  of  the  seal,  and  that 
only,  which  unites  the  several  assents  of  the  individuals  who 
compose  the  community,  and  makes  one  joint  assent  of  the 
whole."  79  This  is  now  true,  however,  only  in  a  very  limited 
sense,  as  corporations  do  contract  by  officers  and  agents  with- 
out the  use  of  the  seal,  but  in  the  conveyance  of  land  the  rule 
is  still  maintained,  and  the  deed  of  a  corporation  without  the 
corporate  seal  is  inadmissible  in  evidence  unless  the  authority 
of  the  officers  executing  it  is  shown.  A  mere  recital  of  such 
authority  in  the  deed  is  not  sufficient  for  this  purpose. m  The 
seal  must  be  the  common  seal  of  the  body,  either  originally  or 
by  adoption,  and  must  be  affixed  by  competent  authority.81 

77  Agricultural    Society    v.     Pad-  79  1  Bl.  Com.  475. 

dock,  80  111.  263.  so  Gashwiler  v.  Willis,  33  Cal.  11. 

78Ang.  &  Ames  on  Corp.  §  193.  8iJackson  v.  Campbell,  5  Wend. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES. 


317 


Whatever  light  the  instrument  sheds  upon  itself  by  way  of 
recital  or  otherwise  should  always  be  stated,  either  literally  or 
with  little  deviation  from  the  original,  the  literal  transcriptions 
being  indicated  by  quotation  marks.  Here  follows  an  example 
of  an  abstract  of  a  simple  deed  by  a  corporation: 

1 


South   Park    Commissioners, 
a  public  corporation  exist- 
ing under  and  by  virtue  of 
the  laws  of  Illinois, 
to 
William  Thomas. 
Doc.  128,288. 


Quitclaim  deed. 
Dated  Aug.  1,  1880. 
Recorded  Aug.  10,  1880. 
Book  120,  page  51^0. 
Consideration  $100.00. 
Conveys  and  quitclaims  all  in- 
terest said  corporation  acquired 
or  derived  under,   through,   or 
"by  virtue  of  a  certain  tax  sale 
deed  to  said  corporation  by  the  County  Clerk  of  Cook  County, 
Illinois,   dated  June   1,   1879,   and  recorded  in   Book  85   of 
'Records,  page  61^0,  in  and  to  the  following  described  real  estate, 
situated  in  said  Cook  County,  to  wit:   [Here  follows  the  de- 
scription.]    Said  interest  acquired  being  a  tax  claim  covering 
the  1st,  2d,  3d,  4th,  5th,  6th,  7th  and  8th  installments  of  the 
South  Park  Special  Assessment. 

"In  witness  whereof,  said  corporation  hath  caused  this  in- 
denture to  be  signed  by  its  President  and  attested  by  its  Secre- 
tary, and  its  official  seal  to  be  hereto  affixed/' 


Signed: 


J.  R.  WALSH,  President. 


Attest: 


H.  W.  HARMON,  Secretary/ 


Acknowledged  by  said  President  and  Secretary  as  the  free 
and  voluntary  act  of  said  South  Park  Commissioners. 
Certificate  of  acknowledgment  dated  Aug.  1,  1880. 

672.  The  seal  is  itself  prima  facie 
evidence  that  it  was  affixed  by 
proper  authority:  Solomon's  Lodge 
v.   Montrnallin,    58   Ga.    547;    Bank 


V.  Kortright,  22  Wend.  348;  Reed 
v.  Bradley,  17  111.  321;  Flint  v. 
Clinton  Co.,  12  N.  H.  434. 


318  ABSTRACTS    OF    TITLE. 

§  256.     Continued  —  Execution  —  Acknowledgment. 

In  the  preceding  example,  it  will  be  observed  that  the  execution 
and  accompanying  recitals  are  quoted,  and  this  practice  is 
recommended  as  being  conducive  of  greater  certainty,  and  as 
presenting  an  answer  to  every  question  that  can  arise.  The 
mode  of  execution  of  corporate  conveyances  is  usually  pre- 
scribed by  statute,  and  ordinarily  consists  of  the  signature  of 
the  president  or  corresponding  officer  who/  subscribes  as  such 
officer,  and  the  affixing  of  the  corporate  seal.  In  addition  to 
this,  even  when  not  required  by  statute,  it  is  customary  for 
the  secretary  or  person  having  the  custody  of  the  seal  to  attest 
the  same  under  his  hand.  Whatever  may  be  the  law,  a  full 
exemplification  of  the  execution  will  present  all  the  questions 
that  can  arise  under  it.  The  seal,  when  shown  of  record,  should 
be  copied  or  described,  and  its  absence  specifically  noted  as  a 
serious  defect.  It  does  not  seem,  however,  that  it  is  necessary 
that  the  record  should  contain  a  fac  simile  of  the  corporate 
seal.82 

The  seal  of  a  corporation,  when  affixed  to  any  deed  or  con- 
tract by  proper  authority,83  is  not  distinguishable  in  its  legal 
effect  from  that  of  an  individual,  and  renders  the  instrument  a 
specialty.84  It  is  the  highest  evidence  of  assent,  and  was  for- 
merly the  only  requisite  necessary  to  bind  the  corporation. 
In  some  of  the  States,  the  deed  must  be  signed  with  the  name 
as  well  as  sealed  with  the  seal  of  the  corporation.85 

Where  the  execution  conforms  to  the  law  of  the  State  where 
the  land  conveyed  is  situate,  no  questions  will  probably  arise. 

82  See,  Anthony  v.  Bank,  93  111.  facts  whence  the  authority  of  the 
225.  officers  of  a  corporation  to  execute 

83  When  the  deed  is  shown  to  have  a  conveyance  may  be  inferred,  such 
been  duly  executed  by  one  having  authority  can  only  be  established 
authority,  proof  that  the  seal  af-  by  resolution  of  the  directors  or 
fixed  is  the  corporate  seal  is  un-  trustees  entered  in  the  proper  book 
necessary;  Phillips  i\  Coffee,  17  111.  of  the  corporation:  Southern  Cal. 
154.  Colony    Assoc,    v.    Bustamente,    52 

84  Clark  v.  Manf.   Co.   of  Benton,  Cal.  192. 

15    Wend.    256;    Benoist    V.    Caron-  85  Isham  v.  Bennington  Iron  Co., 

delet,  8  Mo.  250.     In  the  absence  of       19  Vt.  251. 
the   common    seal,   or   of   proofs   of 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  319 

Where  it  does  not  so  conform,  recourse  must  be  had  by  coun- 
sel, in  the  absence  of  other  evidences  of  conformity,  to  the  law 
of  the  State  where  the  conveyance  was  executed,  or  where  the 
"  home  office  "  is  located.  Appended  matter,  showing  author- 
ity, conformity,  etc.,  should  as  a  rule,  be  fully  presented. 
Where  several  officers  sign,  an  acknowledgment  by  one  only  in 
behalf  of  the  corporation  is  sufficient.86  But,  in  any  case,  the 
persons  appearing  must  acknowledge  as  officers  and  not  as  indi- 
viduals; failing  in  this  the  acknowledgment  will  be  fatally  de- 
fective.87 

In  the  absence  of  statutory  provisions  to  the  contrary,  where 
a  deed,  purporting  to  be  the  deed  of  the  corporation,  is  signed 
by  its  officers,  as  such  officers,  and  has  the  corporate  seal  af- 
fixed, it  is  admissible  in  evidence  as  a  deed  of  the  corporation, 
and  is  itself  presumptive  evidence  of  the  regular  and  duly  au- 
thorized execution  of  same.ss  The  following  is  a  good  example 
of  an  abstract  of  execution,  acknowledgment,  and  appendant 
matter : 

"  lit  witness  whereof  the  said  Union  Mutual  Life  Insurance 
Company  hath  caused  its  Corporate  Seal  to  be  hereunto  affixed, 
and  these  presents  to  be  subscribed  by  John  E.  De  Witt,  its 
President,  duly  authorized  by  vote  of  the  Finance  Committee 
of  the  Board  of  Directors  of  said  Corporation?0  a  certificate 
of  which  is  hereto  attached,"  etc. 

86  Merrill      v.     Montgomery,      25  it  is  affixed  purports  to  be."     Wil- 

Mich.   73.     "The  officer  of  the  cor-  lard's  Conveyancing,  393;  Lovett  v. 

poration    intrusted    with    its    com-  Steam    Mill    'Association,    6    Paige, 

mon   seal,    and   who   subscribes    his  60;    Johnson   v.   Bush,   3   Barb.   Oh. 

name  to   the   deed   as   the   evidence  207. 

that  he  i3  the  person  who  has  af-  87  Bernhart  v.  Brown,   122  N.  C. 

fixed  the  common  seal  to  the  same,  587. 

stands   also    in   the   character   of   a  88  Miners'  Ditch  Co.  v.  Zellerbach. 

suhscribing  witness  to  the  execution  37  Cal.  543;  Sawyer  v.  Cox,  63  111. 

of  the  deed  by  the  corporation;  and  130;    Solomon's  Lodge  v.  Montmal- 

may  be  examined  by  the  officer  tak-  lin,  58  Ga.  547. 

ing  the  proof  to  prove  that  the  seal  89  A   purchaser  of   land    from    a 

affixed   by   him   is  the  common  seal  corporation,  being  a  stranger  to  the 

of  the  corporation,   whose  deed  the  corporation,   is   not  bound   to   know 

conveyance  or  instrument  to  which  that  there  is  a  by-law  of  the  com- 


320 


ABSTRACTS    OF    TITLE. 


Signed: 

"  UNION  MUTUAL  LIFE  IN- 
SURANCE COMPANY, 

"  By  JOHN  E.  De  WITT,™ 

President.'' 


Acknowledged  by  said  President  as  his  free  and  voluntary 
act  and  deed,  and  as  the  act  and  deed  of  said  Company. 
Certificate  of  acknowledgment  dated  August  10,  1883. 


APPENDED  IS 

Extract  from  Article  9  of  the  By-Laws  of  the  Union  Mutual 
Life  Insurance  Company: 

"  The  Finance  Committee  may  authorize  the  foreclosure  of 
mortgages  in  any  manner  provided  by  the  laws  of  the  State 
or  country  in  which  the  mortgage  property  is  situated  and  may 
direct  the  sale  of  any  real  estate  held  by  the  Company,  or  in 
trust  for  the  Company;  and  when  they  shall  direct  any  such 
sale  of  property  held  by  the  Company,  the  President,  and  in 
his  absence  the  Vice  President,  is  authorized  to  execute  the 
proper  instrument  of  conveyance." 


Uttest. 


pany  requiring  an  order  of  the 
board  of  directors  to  authorize  a 
sale  of  land  owned  by  the  company. 
The  rule  is  the  same  where  a  pur- 
chaser receives  a  bond  from  a  cor- 
poration for  a  deed  for  land  pur- 
cnased,   and  he   will   be  entitled   to 


JAMES  SIMMONS, 

Secretary. 


the  deed  according  to  the  provisions 
of  the  bond,  notwithstanding  there 
was  no  order  of  the  board  of  direc- 
tors authorizing  the  sale:  Wait  v. 
Smith,  92  111.  385. 

90  It  is  presumed,  when  the  com- 
mon seal  of  a  corporation  is  affixed 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  321 

At  a  meeting  of  the  Finance  Committee  of  the  Board  of 
Directors  of  the  Union  Mutual  Life  Insurance  Company,  held 
on  August  10,  1883,  the  foregoing  Deed  was  approved,  and  the 
President  directed  to  execute,  acknowledge  and  deliver  the 
same. 

Attest:  JAMES  SIMMONS, 

Secretary  of  the  Finance  Committee. 

As  a  general  rule  the  president  of  a  corporation  has  power 
to  bind  it,  within  the  scope  of  its  powers,  and  as  its  rules  and 
by-laws  are  not  usually  open  to  public  inspection,  particularly 
where  the  home  office  is  in  a  distant  State,  such  rules  and 
by-laws  can  have  no  appreciable  effect  upon  persons  having  no 
knowledge  of  their  existence;  and  notwithstanding  such  officer 
may  have  no  power  to  make  contracts  or  conveyances  under  the 
private  rules  and  regulations  of  the  corporation,  yet,  as  to 
strangers,  without  notice,  it  will  be  estopped  to  deny  the  power 
of  its  officers  to  perform  the  specific  acts.91  As  a  matter  of 
safety,  however,  where  no  authority  specifically  appears  from 
the  instrument  itself  or  matter  appended  thereto,  a  requisition 
should  be  made  for  further  information. 

§  257.  Acts  of  Officers  in  Excess  of  Charter  Powers. 
The  observations  of  the  foregoing  section  suggest  another 
thought  before  leaving  this  branch  of  our  subject.  It  must  al- 
ways be  borne  in  mind,  in  construing  deeds  of  the  character 
now  under  consideration,  that  a  corporation  is  not  vested  with 
the  capacities  of  a  natural  person,  but  only  such  as  its  charter 
confers,92  and  that  acts  done  in  excess  of  the  power  so  con- 
ferred are  void,  in  the  sense  that  they  can  have  no  effect  to 
divest  the  corporation  of  any  right  in  or  to  property  belonging 
to  it.93  Every  person  attempting  to  contract  with  a  corpora- 
te) an  instrument  together  with  the  91  Life  Ins.  Co.  v.  White,  106  111. 
signatures    of    the    proper    officers,       67. 

tint    such    officers    did    not    exceed  92  Davis  v.  R.   R.  Co.,   131   Mass. 

their    authority:    Kansas    V.    R.    R.       259. 

Co.,  77  Mo.  185;  Mullanphy  Savings  93  Martin    r.    R.    R.    Co.,    8    Fla. 

Bank  v.  Schott,  135  111.  655.  370;     Franco-Texan     Land     Co.     V. 


McCorniick,  85  Tex.   416, 


21 


322  ABSTRACTS    OF    TITLE. 

tion  must,  at  his  peril,  take  notice  of  the  legal  limits  of  its 
capacity  and  of  the  powers  conferred  upon  it  by  its  charter.94 
If  the  officers  of  a  corporation  have  no  power  under  the  char- 
ter to  make  conveyances,  or,  having  such  power,  can  only  con- 
vey for  special  purposes,  a  deed  showing  such  excess  of  power 
would  not  be  binding  on  the  corporation  and  all  persons  claim- 
ing through  or  under  such  deed  would  be  affected  with  notice 
of  every  fact  therein  recited.95 

But,  if  a  corporation  has  power  to  make  conveyances  for  a 
stated  purpose,  and  its  officers  execute  a  deed  reciting  compli- 
ance with  its  charter  powers,  then,  notwithstanding  the  re- 
cital may  be  false,  a  person  ignorant  of  its  falsity  would  prob- 
ably take  as  an  innocent  purchaser  and  be  protected.  In  such 
a  case,  as  the  conveyance  would  be  within  the  apparent  power 
of  the  agents  of  the  corporation  the  person  receiving  such  deed, 
or  one  claiming  under  him,  would  be  entitled  to  rely  upon  the 
express,  or  even  the  implied,  representation  that  the  facts 
existed  which  empowered  them  to  execute  the  deed.96 

§  258.  Record  of  Seal.  In  all  the  examples  given  in 
this  chapter,  the  seals  have  been  shown  as  they  were  appended 
to  the  original  instruments,  but  not  infrequently  the  defects 
of  the  record  will  render  this  impossible.  Where  the  seal  has 
not  been  recorded,  but  only  alluded  to,  the  suggestion,  as  made 
upon  the  record,  should  be  shown  as  it  appears,  thus : 

Seal  is  recorded,  "  Corporate  Seal." 

Or  should  the  record  merely  disclose  a  scrawl,  then  the  scrawl 
may  be  shown  with  accompanying  words,  if  any.  In  record- 
ing an  instrument  purporting  to  be  executed  by  a  corporation, 
in  the  absence  of  statutory  requirements  to  the  contrary,  the 
corporate  seal,  if  attached  thereto,  may,  it  seems,  be  represented 

94  Elevator  Co.  V.  R.  R.  Co.,  85  cash  but  exchanged  them  for  per- 
Tenn.  703.  sonal    property,     notes    and    bonds, 

95  Jemison  v.  Bank,  122  N.  Y.  which  fact  was  recited  in  the  deed. 
135;  Franco-Texan  Land  Co.  V.  Mc-  Held,  that  the  deed  was  void  upon 
Cormick,  85  Tex.  416.     In  this  case  its  face. 

the  corporation  had  power  to  sell  its  96  Franco-Texan  Land  Co.   V.  Mc- 

lands  for  cash.     It  did  not  sell  for       Cormick,  85  Tex.  416. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  323 

by  a  scrawl,  a  fac  simile  of  the  seal  or  device  not  being  abso- 
lutely necessary.97 

§  259.  Conveyances  by  Incorporated  Religions  So- 
cieties. The  class  of  corporate  conveyances  to  which  allusion 
has  been  made  in  the  preceding  paragraphs  are  those  executed 
by  public  corporations  or  private  corporations  organized"  for 
business  purposes.  There  remains,  however,  another  class  of 
private  corporations  which  occupy,  so  far  as  regards  their  legal 
corporate  existence,  a  peculiar  position  in  commercial  circles, 
and  these  are  incorporated  religious  and  kindred  societies  not 
organized  for  pecuniary  gain.  The  legal  title  to  the  property 
held  by  these  societies  in  their  corporate  capacity  is  usually 
vested  in  trustees,  and  conveyances  by  such  societies  are  ef- 
fected through  the  media  of  these  trustees.  More  than  ordi- 
nary care  should  be  observed  in  abstracting  such  conveyances, 
and  a  number  of  the  incidents  that  do  not  call  for  explicit  men- 
tion in  other  deeds,  must,  in  this  class  of  instruments,  be  set 
out  in  full.  The  method  of  conveyance,  if  pointed  out  or  pre- 
scribed by  the  statute,  is  of  the  essence  of  the  deed,  and  where 
the  abstract  does  not  disclose  a  statutory  compliance,  it  should 
be  sent  back  to  the  examiner  for  further  investigation. 

The  sufficiency  of  a  deed  of  this  kind  under  the  statute  of 
Illinois  —  and  the  same  requisites  are  essential  in  all  other 
States  whose  statutes  have  been  examined  —  requires  that  the 
individual  names  of  the  trustees  should  be  inserted  as  grantors, 
with  the  addition  of  words  descriptive  of  the  character  in  which 
they  act.  The  granting  clause  should  witness  that  the  said 
grantors,  as  trustees  of,  for,  and  by  the  direction  of,  the  so- 
ciety for  which  they  purport  to  act,  for  the  consideration,  do 
grant,  bargain,  etc.  The  attestation  clause  should  be,  that  the 
said  first  parties,  as  such  trustees,  "  have  hereunto  set  their 
hands  and  seals,"  or  their  official  style  should  be  added  to  their 
signatures,  and  the  instrument  should  be  acknowledged  by  the 
individuals  in  their  proper  character  as  trustees.98 

§  2G0.     Heirs   at   Law.     The  unsatisfactory   character  of 

s>"  Illinois,  etc.,  R.  R.  v.  Johnson,  98  Lombard     v.    Sinai    Congrega- 

40  111.  35.  tion,  64  111.  477. 


324  ABSTRACTS    OF    TITLE. 

conveyances  purporting  to  be  made  by  the  heirs  at  law  of  a 
deceased  person  has  already  been  shown.  The  recital  in  a 
deed  that  the  parties  making  it  are  the  heirs  at  law  of  a  for- 
mer owner  is  no  evidence  of  the  fact  recited,  except  as  against 
the  parties  to  the  deed  and  their  privies.  Where  the  abstract 
furnishes  no  information,  other  than  that  contained  in  the  deed, 
to  prove  the  character  of  the  parties,  death  of  the  ancestor,  etc., 
a  requisition  should  always  be  made  by  counsel  for  further  in- 
formation, which,  unless  a  probate  is  had,  usually  consists  of 
affidavits  in  support  of  the  facts,  made  by  persons  who  are 
supposed  to  be  cognizant  of  them." 

On  the  other  hand,  grave  questions  may  arise  from  convey- 
ances by  third  persons  made  in-  derogation  of  the  rights  of 
heirs.  Particularly  will  this  be  the  case  where  said  rights  con- 
sist only  of  equities.  Matters  of  this  kind  may  not  be  disclosed 
by  the  abstract,  yet  will  readily  appear  by  inquiries  in  pais. 
For  this  reason  counsel  should  always  direct  the  attention  of 
clients  to  the  actual  occupation  of  the  land  and  the  rights  of 
the  persons  in  possession,  if  any.  The  possession  of  land  by 
a  person  at  the  time  of  his  death  is  prima  facie  evidence  of 
ownership  at  the  time,  and  a  subsequent  purchaser  of  the  legal 
title  will  be  conclusively  presumed  to  know  that  whatever  rights 
such  deceased  person  had  in  the  land,  not  disposed  of  by  will,1 
and  of  an  inheritable  character,  devolved  on  his  heirs,  and  his 
possession  being  constructive  notice  of  his  rights  at  the  time 
of  his  death,  it  becomes  the  duty  of  such  purchaser  to  make 
all  necessary  inquiries  to  ascertain  the  extent  of  the  interest 
of  such  heirs.2 

§  261.  Post  Obit  Conveyances.  The  conveyance  by  an 
heir  apparent  of  his  expectancy  in  land  owned  by  his  living 

99  Yahoola,    etc.,    Mining    Co.    v.  upon   payment   of  the   sum   due   on 

Irby,  40  Ga.  479.     For  a  precedent  the    land,    procured    the    legal   title 

of  an  affidavit  of  this  kind  see  chap.  to   be  made  to  her,   and   then   con- 

30.  veyed  same  to  a  third  person,  who 

1  See  "  Descents/'  infra.  had  notice  of  the  equitable  title  of 

2  The  above  rule  was  applied  in  a  the  heirs.  McVey  v.  McQuality,  97 
case  where  a  person  holding  a  bond  111.  93. 

for   a   deed   died,    and    his    widow 


SPECIAL    CJ  OF    INDIVIDUAL    CONVEYANCES. 


325 


ancestor,  which  would  descend  to  him  if  he  survived  his  an- 
cestor, and  the  latter  should  die  intestate  owning  the  same,  is  a 
conveyance  of  a  mere  naked  possibility  not  coupled  with  an 
interest  and  passes  no  estate  or  interest  in  the  land.  Such  a 
title  can  not  operate  to  defeat  the  grantor's  own  title  after- 
ward acquired  by  descent,  except  by  way  of  estoppel,  and,  if  the 
deed  was  without  warranty,  such  grantor  is  not  precluded  from 
asserting  an  after-acquired  title.3  But  where  a  conveyance  of 
this  character  is  made  with  covenants  of  warranty,  it  will  oper- 
ate to  pass  the  title  by  estoppel  if  the  land  descends  to  the 
heir.4 

§  262.  Conveyances  by  Delegated  Authority.  Every 
deed  executed  by  virtue  and  in  pursuance  of  a  power  should 
bear  upon  its  face  a  recital  of  authority,  but  deeds  purporting 
to  be  the  direct  act  of  the  grantor  though  performed  by  an  at- 
torney in  fact  are  sufficiently  formal  if  the  execution  and 
authentication  affirmatively  show  the  fact.  It  is  therefore 
recommended  that  the  description  of  the  parties  grantor  should, 
in  all  cases  of  delegated  authority,  be  taken  from  the  execution 
and  not  from  the  premises,  which  as  a  rule,  does  not,  and  as  a 
matter  of  correct  form,  should  not,  show  the  vicarious  act.  The 
recital  of  acknowledgment  should  also  be  drawn  to  show  the 
substitution  of  persons.  Aside  from  these  two  points  the  ab- 
stract of  a  deed  executed  by  an  attorney  in  fact  differs  in  no 
material  respect  from  one  executed  by  the  grantor  in  personam. 
The  points  mentioned  may  be  shown  in  this  manner: 


John  Smith,  by  William  Strong, 
his  attorney  in  fact, 
to 
James  Robinson. 


Warranty   Deed. 

Dated,  etc. 

*  *         *         *         * 

*  *         *         *         * 


3  Hart  v.  Gregg,  32  Ohio  St.  502; 
Boynton  v.  Hubbard,  7  Mass.  112. 
In  this  case  a  covenant  was  made 
by  an  heir  to  convey,  on  the  death 
of  his  ancestor,  if  lie  should  survive 
him,    a   certain    undivided    part    of 


what  should  come  to  him  by  de- 
scent, and  same  was  held  to  be  void 
at  law  as  well  as  in  equity. 

4  Rosenthal  v.  Mayhugh,  33  Ohio 
St.  158;  Bohon  v.  Bohon,  78  Ky. 
408. 


326  ABSTRACTS    Otf   TITLE. 

Acknowledged  June  1,  1S82,  by  William  Strong,  as  the  act 
and  deed  of  said  John  Smith. 

If  desired,  however,  the  abstract  of  the  deed  may  be  made 
in  the  usual  manner,  the  caption  reciting  the  name  of  the 
grantor  as  found  in  the  premises.  In  such  case  the  execution 
may  be  shown  as  follows: 

Said  grantor  signs  and  acknowledges  by  William  Strong,  his 
attorney  in  fact. 

Erroneous  or  imperfect  execution  or  acknowledgment  must 
be  indicated  in  the  manner  already  pointed  out.  The  instru- 
ment is  properly  and  legally  executed  if  it  bears  the  name 
(signature)  and  seal  of  the  grantor,  showing  the  procurement 
of  the  attorney  and  purporting  to  be  the  act  of  the  principal; 
but  in  making  the  acknowledgment,  the  attorney,  being  the 
person  who  actually  executes  the  instrument,  must  acknowledge 
it ;  yet  this  he  does  as  and  for  his  principal. 

As  to  what  constitutes  a  proper  signing  there  is  some  conflict 
of  authority,  the  earlier  cases  holding  it  to  be  immaterial 
whether  the  attorney  sign  "  A,  attorney  for  B,'  or  "  B,  by  his 
attorney  A,"  5  on  the  theory  that  no  particular  form  of  words 
is  necessary  to  bind  the  principal,  provided  the  agency  of  the 
attorney  appears  from  the  deed  itself.6  It  is  now  well  estab- 
lished, however,  that  a  conveyance  made  by  an  attorney  must 
be  in  the  name  of  the  principal,  and  purport  to  be  executed 
by  him,7  and  where  the  agent  assumes  either  to  grant  or  to 
execute,  as  where  he  signs  and  seals,  although  describing  his 
office,  tile  deed  will  be  void  as  to  the  principal.8     It  has  also 

5  Jones  V.  Carter,  4  Hen.  &  M.  H.  470.  Less  strictness  is  required 
184;  Montgomery  v.  Dorion,  7  N.  where  the  instrument  is  not  under 
H.  475;  Wilkes  v.  Back,  2  East,  seal,  it  being  sufficient,  in  such 
142.  case,  if  the  intent  to  bind  the  prin- 

6  Magill  v.  Hinsdale,  6  Conn.  464 ;  cipal  appears  in  any  part  of  the  in- 
Worrall  v.  Munn,  1  Seld.  229.  strument:   Townsend   v.  Hubbard,  4 

7  Pensonneau  v.  Bleakley,   14   111.  Hill    (N.   Y.),   351. 

15:    Elvvell   V.   Shaw,    16   Mass.   42;  s  Fowler  v.  Shearer,  7  Mass.   14; 

Thurman     V.     Cameron,     24     Wend.  State  V.  Jennings,  10  Ark.  428;  Mc- 

(N.    Y.)    90;    Stinchfield    v.    Little,  Donald   v.   Bear  River   Co.,   13   Cal. 

1   Me.   231;   Hale  V.  Woods,   10   N.  235;   and  this2  even  though   in  the 


SPECIAL    CLASSES    OF   INDIVIDUAL    CONVEYANCES.  327 

been  held  that  signing  the  principal's  name,  but  making  no 
mention  of  the  attorney,  is  not  a  valid  execution.9  It  would 
seem,  therefore,  that  in  all  conveyances  by  attorneys  in  fact, 
both  the  name  of  the  principal  and  of  the  attorney  must  sub- 
stantially appear  in  the  execution  of  the  deed,  showing  not 
only  that  the  grant  and  seal  are  those  of  the  principal,  but  by 
whom  these  acts  are  done;  10  and  where  there  are  two  grantors, 
and  one  of  them  acts  as  the  attorney  in  fact  of  the  other,  he 
must  subscribe  his  name  twice,  once  as  attorney  in  fact  for 
the  other,  and  once  for  himself.  One  signature  and  a  second 
seal  is  not  equal  to  a  second  subscription.11 

It  is  not  necessary,  however,  that  any  particular  form  of 
words  should  be  used  to  render  the  instrument  valid  and  bind- 
ing upon  the  principal,  provided  it  shows  upon  its  face  that  it 
was  intended  to  be  executed  as  the  deed  of  the  principal,  and 
that  the  seal  affixed  is  his  seal  and  not  that  of  the  attorney ; 
and  it  has  been  held,  that  where  a  deed  is  executed  for  several 
parties,  it  is  not  necessary  to  affix  a  separate  and  distinct  seal 
for  each  signature  if  it  appears  that  the  seal  affixed  was  in- 
tended to  be  adopted  as  the  seal  of  each  of  the  parties.12 

§  263.  Powers  of  Attorney.  Immediately  following  the 
abstract  of  every  deed  purporting  to  have  been  made  by  the  pro- 
curement of  an  attorney  in  fact,  should  appear  the  warrant  or 
power  which  authorized  the  act ;  for  an  unauthorized  deed 
would  be  void  for  all  purposes,  and  the  proof  of  this  power  can 
only  be  shown  by  an  instrument  executed  with  all  the  formali- 
ties necessary  to  a  valid  deed  of  conveyance.13  The  instru- 
ment usually  recites  the  scope  of  the  attorney's  powers,  yet 

body  of  the  instrument  it  is  stated  10  See  3  Wash.  Real  Prop.,  *573, 

that  it  is  the  agreement  of  the  prin-  and  cases  cited. 

cipal  by  his  attorney,  and  that  the  u  Meagher  v.  Thompson,  49  Cal. 

principal    covenants,   etc.,    while     in  189. 

the  testimonium  clause  it  is  alleged  12  Townsend   v.   Hubbard,   4   Hill 

that  A.  B.  (the  agent),  as  the  attor-  (N.  Y.),  351. 

ney   of    the    principal,    has    set    his  13  Fire   Ins.   Co.   v.   Doll,   35   Md. 

hand    and    seal:    Townsend    V.    Cor-  89;  Watson  r.  Sherman,  84  111.  263 ; 

ning,  2:\  Wend.  435.  Clark  v.  Graham,  6  Wheat.   (U.  S.) 

'J  Wood  V.  Goodridge,  6  Cush.  117.  577;  Videau  v.  Griffin,  21  Cal.  389. 


328  ABSTRACTS   OF   TITLE. 

even  where  it  is  deficient  in  some  particular,  others,  which  are 
necessary  to  the  proper  exercise  of  the  powers  expressly  enu- 
merated, will  be  implied  as  incidental  thereto;  as,  where  a 
power  is  expressly  given  to  sell  or  lease  the  property  of  the 
principal,  a  power  to  contract  to  sell,  as  well  as  to  convey  and 
transfer,  will  be  implied.14  The  usual  rule,  however,  is  to  con- 
strue instruments  of  this  kind  strictly ;  hence,  a  power  to  "  sell 
and  convey,"  will  not  be  extended  by  interpretation  to  include 
a  power  to  mortgage,  or  otherwise  to  dispose  of  the  property 
than  by  a  sale  and  conveyance.15 

The  right  of  revocation  is,  as  a  rule,  always  reserved,  but 
this  is  a  right  incident  to  the  power  given,  and  a  principal  may 
always  revoke  the  authority  of  his  agent  at  his  mere  pleasure 
without  a  reservation  of  such  express  right,  or  even  though  the 
power  may  be  expressly  declared  to  be  irrevocable.16  The  only 
exceptions  to  this  rule  are  when  the  authority  or  power  is 
coupled  with  an  interest  or  where  it  is  given  for  a  valuable  con- 
sideration, or  where  it  is  part  of  a  security,  in  all  of  which 
cases  it  is  irrevocable,  whether  so  expressed  or  not.17 

As  before  remarked,  powers  of  attorney  must  be  strictly 
construed,  yet  the  rule  does  not  require  a  construction  that  will 
defeat  the  manifest  intention  of  the  parties,  and  where  such 
intention  fairly  appears  from  the  language  used,  it  must  pre- 
vail,18 but  the  authority  can  not  be  extended  beyond  that  which 
is  clearly  given  in  terms,  or  which  is  necessary  and  proper  for 
carrying  the  authority  given  into  full  execution.19  In  this 
respect  there  is  a  marked  difference  as  compared  with  powers 

14  Hemstreet  V.  Burdick,  90  111.  i8Hemstreet  v.  Burdick,  90  111. 
444.  444. 

15  Minnesota,  etc.,  Co.  v.  Mc-  1 9  Pool  v.  Potter,  63  111.  533. 
Crossen,  110  Wis.  316;  Colesburg  v.  Hoyt  v.  Jaques,  129  Mass.  286;  Gil- 
Dart,  61  Ga.  620;  Hawxhurst  V.  bert  v.  How,  45  Minn.  121.  Thus, 
Rathgeb,   119   Cal.   531.  a    power   of   attorney    jointly    exe- 

16  Walker  V.  Denison,  86  111.  142;  euted  by  husband  and  wife  for  the 
Brown  v.  Pforr,  38  Cal.  550.  sale   of   all   their   property,   and   in 

17  Walker  V.  Denison,  86  111.  142 ;  which  the  words,  "  we"  "  ours,"  etc., 
Gilbert  v.  Holmes,  64  111.  548;  are  exclusively  used,  has  been  held 
Brown  v.  Pforr,  38  Cal.  550.  insufficient  to   authorize  a    sale    of 


SPECIAL    CLASSES    OP    INDIVIDUAL    CONVEYANCES.  320 

of  appointment  created  by  deeds  and  wills,  and  powers  intro- 
duced in  connection  with  uses. 

The  formal  requisites  to  be  observed,  apart  from  such  as 
are  incident  to  all  sealed  instruments,  are  the  constituent  words, 
which  are  "  make,  constitute  and  appoint ;"  the  powers  dele- 
gated; the  reservation  of  the  right  of  revocation,  and  the  power 
of  substitution,  if  any  is  given.20  The  recital  of  the  power 
always  calls  for  minuteness  in  transcription,  and  when  coupled 
with  an  interest  or  created  upon  a  valuable  consideration,  it 
should  be  rendered  with  literal  fidelity.  The  arrangement  of 
the  synopsis  is  much  the  same  as  other  grants.  An  example 
is  appended: 


John  Smith, 

to 

William  Strong. 


Power  of  Attorney. 

Dated,  etc. 

*         *  *         *         * 


First  party  makes,  constitutes  and. appoints  second  party  his 
true  and  lawful  attorney,  for  him  and  in  his  name,  place  and 
stead,  to  [here  follows  the  special  purpose  of  the  power,  liter- 
ally rendered]. 

Full  power  of  substitution  and  revocation. 

Acknowledged,  etc. 

An  unexecuted  power,  if  still  subsisting,  should,  as  a  rule, 
be  set  out  in  full,  though  many  examiners  show  such  instru- 
ments only  by  way  of  note.  This  latter  method  may  be  re- 
sorted to  with  propriety  only  in  a  few  instances,  and  unless 
there  has  been  an  implied  revocation,  as  where  the  constituent 

the   individual    property    of    either,  to    oilier    matters    it    is    often    per- 

or  at  least  in  the  absence  of  proof  mitted   to    be   exercised    by   persons 

of   the  non-existence   of  joint   prop-  whom  the  attorney  may  appoint  or 

Wty:     Dodge   v.    Hopkins,    14    Wis.  substitute   for   himself  and   to    such 

"30.  persons    the    attorney    may    entrust 

20  Where  the  authority  of  the  at-  the  same  or  more  limited   powers  as 

torney   is   to  execute  deeds   of   con-  are  given  to   him   by  the  principal. 

veyance  the  power,   as  a   rule,   can-  If  the  letters  contain  no  powers  of 

not  be  delegated.     Where  it  relates  substitution  this  cannot  be  done. 


ABSTRACTS    0*   TITLE. 

has  afterward  made  conveyance  himself,  or  where  there  has 
been  an  expiration  by  limitation,  or  some  other  circumstance  of 
like  character,  such  a  course  is  not  recommended.  The  fol- 
lowing will  serve  to  illustrate  the  method: 

Note. —  In  Boole  20,  page  1GS,  we  find  recorded  a  power  of 
attorney  from  Thomas  J.  Walsh  to  Austin  Bierbower, 
authorizing  him  to  sell  and  convey  the  North  East  quar- 
ter of  Section  13,  aforesaid  (and  other  property),  but 
as  no  action  (appearing  of  record)  has  been  had  under 
said  power  (as  regards  the  premises  in  question)  we 
do  not  show  it  herein. 

§  264.  Revocations.  The  recall  of  a  power  or  authority 
conferred,  or  the  vacating-  of  an  instrument  previously  made,  is 
called  a  revocation.21  A  power  of  attorney  may  be  revoked  in 
a  variety  of  ways ;  as  by  the  death  of  the  principal,  which  ope- 
rates as  a  revocation  of  every  power  uncoupled  with  an  inter- 
est ;  22  the  marriage  of  the  principal,  the  power  having  been 
given  while  he  was  a  single  man;23  an  adjudication  in  bank- 
ruptcy ;  or  a  conveyance  by  the  principal  of  the  subject-matter 
of  the  power  before  the  agent  has  had  an  opportunity  to  dis- 
pose of  it.24  But  the  giving  of  a  second  power  to  another 
agent,  without  specially  revoking  the  first,  would  not  act  as  a 
revocation,  and  if  either  power  is  executed,  both  will  be  ex- 
hausted.25 In  the  foregoing  instances  the  revocation  occurs 
by  operation  of  law.  The  principal  may  revoke  by  a  special 
instrument  of  revocation,  which,  when  recorded  with  the  power, 
will  operate  as  constructive  notice  of  such  fact.  An  unexer- 
cised power,  followed  by  revocation,  sheds  no  light  on  the 
title,  and  may,  with  propriety,  be  disregarded,  but  if  it  should 
be  deemed  desirable  to  show  same,  a  brief  mention  among  the 
appendices  would  seem  to  be  all  that  is  required.     Should  the 

212  Bou.  Law  Diet.,  477.  23  Henderson    v.     Ford,    46    Tex. 

22  Blayton    v.    Merrett,  ~52    Miss.  627. 

353;  Davis  t'.  Savings  Bank,  46  Vt.  2  4  Walker  v.  Denison,  86  111.  142. 

728.  25  Cushman  v.  Glover,  11  111.  600. 


SPECIAL    CLASSES   OF   INDIVIDUAL    CONVEYANCES.  331 

examiner  desire  to  show  the  transaction  in  regular  course  it 
should  be  treated  much  in  the  same  manner  as  a  satisfied  mort- 
gage, that  is,  the  power  should  be  exhibited  in  brief  terms  in 
its  proper  place  and  the  revocation  should  immediately  fol- 
low.    This  would  be  a  sufficient  reference  to  the  revocation: 

Jolui  Smith  ~)      Revocation, 

to  r      Dated,  etc. 

William  Strong.  J       *•         *         *         *         # 

Sets  forth  the  execution  of  the  power  of  attorney  shown  as 
No.  10,  ante,  and  countermands  and  revokes  same,  and  all 
power  and  authority  thereby  given  to  said  William  Strong. 

Acknowledged,  etc. 

It  is  important  that  sufficient  evidence  should  always  be 
provided  as  to  the  continuance  of  a  power  at  the  time  of  its 
exercise.  An  unrevoked  power  duly  recorded  furnished  suffi- 
cient evidence  as  far  as  it  goes,  but  unless  the  abstract  also 
discloses  the  fact  that  the  principal  was  living  at  such  time, 
or  had  not  been  subjected  to  the  disability  of  bankruptcy  or 
other  disqualifying  cause,  prudence  would  suggest  that  an  in- 
quiry in  pais  be  made  to  ascertain  such  facts.  If  the  exam- 
iner is  personally  cognizant  of  the  fact  that  a  donor  of  a  power 
of  attorney  was  alive  at  the  time  of  the  execution  of  the  power 
he  may,  if  so  disposed,  testify  to  this  fact.  This  may  be  ac- 
complished by  a  note  as  follows : 

Note. —  To    my    knowledge,  John  Smith,  the  grantor  named 
in  the  foregoing  deed,  was  alive  on  August  1,  1902. 

This  course  is  purely  optional  with  the  examiner,  but  it  will 
often  be  of  great  service  to  counsel. 

§  205.  Conveyances  in  Trust.  Trust  deeds  were  for- 
merly of  wry  common  occurrence,  but  are  now  rarely  employed, 
save  in  a  few  States  where  mortgages  are  made  in  that  form. 
They  were  used  to  convey  the  beneficial  interest  to  persons  who 
were  incapable  of  holding  the  legal  title,  or  in  whom  it  was 


ABSTRACTS    OF    TITLE. 


not  desirable  to  have  the  legal  title  vest.  With  the  gradual 
disuse  of  uses  and  trusts  in  some  States,  and  their  summary 
abolition  in  others,  conveyances^  of  this  character  have  become 
infrequent,  while  no  estate. or  interest,  legal  or  equitable,  will 
vest  in  the  trustee  under  the  statutes  of  some  of  the  States, 
but  the  beneficiary  takes  the  entire  legal  estate  of  the  same  qual- 
ity and  duration,  and  subject  to  the  same  conditions  as  his 
beneficial  interest.20 

The  character  of  the  instrument,  as  well  as  its  effect,  may 
be  readily  determined  by  inspection ;  if  it  imposes  on  the  trus- 
tee active  duties  with  respect  to  the  trust  estate,  such  as  to  sell 
and  convert  into  money,  or  to  lease  the  same  and  collect  the 
rents,  pay  taxes,  etc.,  and  to  pay  the  net  proceeds  to  the  bene- 
ficiary, it  creates  an  active  trust  which  the  statute  does  not 
execute,27  but  if  there  is  simply  a  conveyance  to  the  trustee 
for  the  use  of,  or  upon  a  trust  for,  another,  and  nothing  more 
is  said,  the  statute  immediately  transfers  the  legal  estate  to 
the  use,  and  no  trust  is  created,  although  express  words  of 
trust  are  used. 


26  Witham  v.  Brooner,  63  111. 
344;  Roth  V.  Michalis,  125  Md.  325. 
This  applies  more  particularly  to 
"  dry  "  or  passive  trusts.  Express 
trusts  are  still  generally  permitted 
to  be  created  for  the  following  pur- 
poses: 

1.  To  sell  lands  for  the  benefit 
of  creditors. 

2.  To  sell,  mortgage,  or  lease 
lands  for  the  benefit  of  legatees,  or 
for  the  purpose  of  satisfying  any 
charge  thereon. 

3.  To  receive  the  rents  and 
profits  of  lands  and  apply  them  to 
the  use  of  any  person  during  the 
life  of  such  person,  or  for  any 
shorter  term,  subject  to  the  rules 
prescribed  by  the  statute  fixing  the 
quantity  and  duration  of  estates. 

4.  To  receive  the  rents  and 
profits  of  lands  and  to  accumulate 


the  same  for  the  benefit  of  any  mar- 
ried woman,  or  for  any  of  the  pur- 
poses and  within  the  limits  of  the 
statute  prescribing  the  nature  and 
quality  of  the  estates. 

5.  For  the  beneficial  interests  of 
any  person  or  persons,  when  such 
trust  is  fully  expressed  and  clearly 
defined  upon  the  face  of  the  instru- 
ment creating  it,  subject  to  the 
limitations,  as  to  the  time  and  the 
exceptions  thereto,  relating  to  lit- 
erary and  charitable  corporations, 
prescribed  by  the  statute. 

Trusts  resulting  from  implication 
of  law  are  always  recognized,  but 
the  doctrine  has  been  very  much 
circumscribed,  as  described  in  the 
preceding  chapter. 

27  Kirkland  v.  Cox,  94  111.  400; 
Kellogg  v.  Hale,   108  111.    164. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  333 

When  conveyances  in  trust  are  allowed,  the  nature,  quality 
and  extent  of  the  trust  should  be  very  explicitly  stated;  while 
in  States  where  only  a  few  enumerated  express  trusts  are 
recognized,  every  part  of  the  instrument  necessary  to  bring  it 
within  one  of  the  classes  named  in  the  statute  must  be  shown. 
The  trust  is  ordinarily  sufficiently  disclosed  by  the  recitals 
of  the  habendum,  but  where  there  is  a  power  of  appointment, 
and  certain  reservations  for  various  purposes,  a  very  full  syn- 
opsis of  every  part  of  the  deed  will  be  absolutely  necessary 
for  a  proper  understanding  of  it.  In  the  latter  case  there 
should  be  shown  the  special  matter  of  inducement  as  recited 
in  the  premises ;  the  grant ;  the  habendum ;  the  reservation,  ex- 
plicitly rendered ;  the  enumeration  of  the  trusts  and  powers, 
and  the  power  of  appointment,  or  successor  in  trust,  if  named. 

"No  particular  form  of  words  is  requisite  to  create  a  trust, 
the  intent  only  being  regarded  by  courts  of  equity,28  yet  the 
habendum  usually  makes  a  formal  recital  after  the  preliminary 
words  "  to  have  and  to  hold,"  etc.,  by  continuing,  "  in  trust 
nevertheless,"  or  some  similar  expression.  These  words,  how- 
ever, are  not  essential  and  trusts  must,  in  all  cases,  be  con- 
strued according  to  the  intention  of  the  parties  as  gathered  from 
the  entire  instrument.29  Thus,  when  a  gift  is  expressed  to  be 
for  the  "  use  and  benefit  "  of  another,  or  "  to  the  end  "  that 
the  donee  shall  apply  it  to  certain  purposes,  this  will  be  suffi- 
cient to  raise  a  trust  in  such  donee.30 

Where  a  trust  is  intended  by  a  conveyance,  but  fails  entirely, 
so  that  the  grantee  takes  no  estate  in  the  land  under  the  con- 
veyance, it  may  nevertheless  create  in  him  a  valid  power  in 
trust,31  the  legal  title  remaining  in  the  grantor.32  Where  the 
deed  creates  a  valid  trust,  the  entire  estate  vests  in  the  trustee, 
subject  only  to  the  execution  of  the  trust,  except  as  otherwise 

28  Fisher  v.  Field,  10  Johns.  494.  31  Fellows   v.   Heermans,  4   Lans. 

29  Ken-  v.  Vomer,  GG  Pa.  St.  32G;         (X.    Y.)     230. 

Guion  v.  Pickett,  42  Miss.  77.  32  This  is  now  the  general  statu- 

30'  Randolph  v.  Land  Co.,  104  Ala.       tory  doctrine. 
355. 


334  ABSTRACTS    OF    TITLE. 

provided ;  and  where  the  deed  gives  a  power  of  sale  to  the  trus- 
tee at  the  request  arid  for  the  benefit  of  the  beneficiary  under 
the  deed,  no  power  of  revocation  being  reserved,  no  estate  in  the 
premises  is  left  in  the  grantor  which  is  capable  of  being  trans- 
ferred.33 Where  the  legal  title  is  vested  in  a  trustee,  nothing 
short  of  reconveyance  can  place  the  same  back  in  the  grantor 
or  his  heirs,  but  under  certain  circumstances  such  reconvey- 
ance will  be  presumed  without  direct  proof  of  the  fact.34  Trust 
estates  are  subject  to  the  same  rules  as  legal  estates  in  every 
case,  dower  excepted.35 

§  266.  Revocation  of  Trust.  It  is  competent,  in  some 
cases,  for  the  settler  of  a  trust  to  reserve  a  right  to  revoke  the 
same,  and  such  reservation  is  not  inconsistent  with  a  valid 
trust.  The  reserved  power  to  revoke  does  not  operate  to  de- 
stroy the  trust,  which  remains  absolute  and  effective  until  the 
right  is  exercised,  and  if  it  is  not  exercised  during  the  life- 
time of  the  grantor  the  trust  remains  as  though  there  had 
never  been  a  provision  for  revocation.36  Where  an  instrument 
of  this  character  is  found,  and  the  trust  is  unexecuted,  the 
reservation  should  be  copied  in  full. 

§  267.  Declaration  of  Trust.  To  establish  an  express 
trust,  the  evidence  must  all  be  in  writing,  and  sufficient  to  show 
that  there  is  a  trust,  and  what  it  is,37  but  where  land  has  been 
conveyed  by  a  deed  absolute  in  form,  if  designed  simply  for  a 
holding  in  trust,  the  grantee  may  make  a  valid  admission  of 
the  trust  in  a  separate  instrument.38  Such  instruments  are 
known  as  "  declarations  of  trust,"  and,  unless  required  by 
statute,  need  not  be  by  deed,  but  any  writing  subscribed  by  the 

33  Marvin  V.  Smith2  46  N.  Y.  571;  1  Green.  Cruise,  335.  But  this  does 
Leonard   v.   Diamond,   31   Md.   536.  not  apply  to  resulting  trusts,  which 

34  Kirkland  V.  Cox,  94  111.  400;  may  be  established  by  parol:  Paris 
reversing  81  111.  11;  80  111.  67.  V.   Dunn,   7   Bush    (Ky.),   276;    Mc- 

35  Danforth  l?.  Lowry,  3  Haywood  Ginity  v.  McGinity,  03  Pa.  St.  38. 
(N.  C.)    68.  38  Elliott  v.  Armstrong,  2  Blackf. 

36  Lines  V.  Lines.  142  Pa.  St.  149 ;  198 ;  McLaurie  v.  Partlow,  53  111. 
Van  Cott  v.  Prentice,  104  N.  Y.  45;  340;  Cook  v.  Barr,  44  N.  Y.  156; 
Nichols  v.  Emery,   109  Cal.  323.  Fast  v.  McPherson,  98   111.  496;   or 

3  7  Cook  v.  Barr,  44  N.  Y.  156;  by  the  pleadings  in  a  chancery 
Steere  V.   Steere,  5  Johns.  Ch.  355;        suit:     Ibid. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  335 

trustee  will  be  sufficient  if  it  contain  the  requisite  evidence.39 
Although  it  is  not  essential  that  the  writing  by  which  the  trust 
is  manifested  and  proven  should  be  in  any  particular  form, 
it  is  customary  for  the  trustee  to  declare  same  in  a  formal 
document,  reciting  the  matter  of  inducement,  declaring  the 
nature  of  the  trust  estate,  and  frequently  covenanting  against 
his  own  acts,  and  for  conveyance  to  the  beneficiary.  What- 
ever may  be  the  form  of  the  instrument,  the  nature  and  qual- 
ity of  the  trust  declared,  and  the  terms  and  conditions  upon 
which  it  is  held,  should  sufficiently  appear  to  show  the  full  in- 
tention of  the  parties  as  manifested  by  the  instrument.  An 
illustration  is  herewith  given : 


Andrew  Baxter, 

Trustee, 

to 

Whom  it  may  concern. 


Declaration   of  Trust. 
Dated,  etc.     *     *     *     * 
Becites,  that  Charles  Den- 
ton,   by    deed    bearing    even 


date  herewith,  in  consideration  of  $1,500.00,  conveyed  to  said 
first  party  in  fee  simple  tlie  following  described  lands,  to  wit: 
[describing  same]  as  by  said  deed  will  more  fully  appear.  And 
that  said  first  party  has  "this  day"  executed  and  delivered 
to  said  Charles  Denton  a  mortgage  upon  said  premises,  as  col- 
lateral security  for  the  payment  of  his  bond  for  the  payment 
of  $1,000.00  [stating  the  terms]  being  part  purchase  money 
expressed  in  said  deed. 

Therefore,  said  first  party,  makes  known,  and  declares,  that 
mid  premises  so  conveyed  to  him,  he  now  holds,  and  will  con- 
tinue to  hold,  in  trust  only,  for  the  use  and  benefit  of  George 

•'-'Cook   r.    Barr.   44    N.    Y.    156.  will   in  writing,   or   else   they   shall 

By     the     English     statute     of    29  he  utterly  void  and  of  none  effect." 

Charles    II,    Chap.    3,    §    7,    it    was  This   statute   provided,   not   for  the 

enacted    "that    all    declarations    or  creation  of  trusts,  hut  for   proving 

creations   of  trust   or   confidence   of  them,  and  is  the  basis  of  American 

any    lands,    tenements    or    heredita-  statutes      on      the      same      subject, 

ments,      shall      be      manifested      or  Though  a  trust  of  lands  can  not  be 

proven   by  some    writing   signed   by  established    by    parol,    yet    if    the 

the  party  who  is  by  law  enabled  to  trustee    execute    the    trust,    he    is 

declare   such   trust,   or    by   his   last  bound  by  the  act. 


336  ABSTRACTS    OF    TITLE. 

Zeigler,  son  and  heir  at  law  of  Henry  Zeigler,  deceased,  and 
that  he  has  no  beneficial  interest  therein,  except  what  may 
arise  by  legal  or  equitable  implication  from  the  circumstances 
attending  the  execution  of  said  mortgage. 

Said  first  party  further  admits  that  the  residue  of  the  con- 
sideration money  expressed  in  said  deed  to  him,  to  wit:  the 
sum  of  $500.00,  was  paid  by  William  Zeigler,  for  the  benefit 
of  said  George  Zeigler. 

And  said  first  party  covenants  to  and  with  said  William 
Zeigler  and  George  Zeigler,  that  he  will  convey  said  premises 
by  "  good  and  sufficient  "  deed,  to  said  George  Zeigler,  or  his 
assigns,  as  he  or  they  may  direct,  whenever  and  as  soon  as  said 
mortgage  shall  have  been  paid  off  and  discharged,  or  otherwise 
fully  secured  to  said  first  party,  and  that  free,  clear  and  dis- 
charged from  all  and  every  incumbrance  therein  by  said  first 
party. 

First  party  further  covenants  against  his  own  acts. 

i 
§  268.     Removal  or  Substitution  of  Trustees.     Where 

a  trustee  is  dead,  the  trust  being  still  alive  and  unexecuted,  a 
court  of  equity  will  carry  it  out  if  necessary,  through  its  own 
officers  and  agents,40  and  may  appoint  a  new  trustee,41  and  it 
seems  that  in  some  States,  even  where  the  trust  deed  contains 
a  power  of  appointment,  in  the  event  of  the  death  of  the  trus- 
tee without  executing  the  trust,  the  cestui  que  trust  can  not 
appoint  a  new  trustee,  but  the  exercise  of  this  right  devolves 
exclusively  on  a  court  of  chancery.42  A  trustee  may  always 
be  removed  in  the  discretion  of  the  court  upon  proper  cause 
shown.43 

40  Batesville  Institute  V.  Kauff-  eery  has  jurisdiction  to  control  the 
man,  18  Wall.  120.  It  is  a  rule  in  exercise  of  the  power  of  appoint- 
equity,  that  a  trust  shall  never  fail  ment  when  vested  in  an  individual 
for  want  of  a  trustee:  Buchan  V.  so  far2  at  least,  as  to  prevent  an 
Hart,  31   Tex.  647.  abuse      of      discretion:     Bailey     V. 

41  Curtis   v.    Smith,    60   Barb.    9;  Bailey,  2  Del.  Ch.  95. 

Hunter     v.     Vaughan,     24     Gratt.  43  Att'y-Gen.     v.     Garrison,     101 

(Va.)  400.  Mass.  223;  Ketchum  v.  R.  R.  Co.,  2 

42  Guion  v.  Pickett,  42  Miss.  77.  Woods,  532;  Scott  v.  Rand,  118 
As  a  general  rule,  a  court  of  chan-  Mass.  215. 


SPECIAL    CLASSES    OF    INDIVIDUAL    CONVEYANCES.  .jo  i 

§  269.     Resignation  —  Refusal  to  Act  —  Successor.     A 

trustee  can  not  divest  himself  of  the  obligation  to  perform  the 
duties  of  his  trust  without  an  order  of  court,  or  the  consent  of 
all  the  cestuis  que  trust,44  and  where  he  refuses  to  act,  equity 
will  compel  him  to  do  so,  or  appoint  a  suitable  person  in  his 
place.45  It  is  customary,  however,  in  some  classes  of  trust 
deeds,  to  appoint  a  successor  in  trust,  in  the  event  that  the 
trustee  becomes  disabled  or  refuses  to  act,  and  where  a  deed 
contains  an  appointment  of  this  kind  it  is  always  well  to  show 
it.  If  the  trust  is,  in  fact,  executed  by  the  successor,  the 
original  appointment  must  be  shown.  This  will  often  occur  in 
cases  of  trust  deeds  in  the  nature  of  mortgages. 

44  Thatcher    v.    Candee,    4    Abb.  45  Sargent  v.  Howe,   21   111.   148; 

App.  Dec.    (N.   Y.)    387;   Cruger  v.       Wilson  v.  Spring,  64  111.   14. 
Halliday,  11  Paige  (N.  Y.)   314. 
22 


CHAPTER  XVII. 


OFFICIAL    CONVEYANCES. 


270. 

Defined  and  distinguished. 

§  282. 

271. 

Official  deeds  generally. 

272. 

Recitals. 

283. 

273. 

Covenants. 

274. 

Sheriff's  deed  —  On  execu- 

284. 

tion. 

285. 

275. 

Continued    —    Acknowledg- 
ment. 

286. 

27G. 

Continued  —  Operation,  ef- 

287. 

fect. 

288. 

277. 

Continued  —  Imperfect  de- 
scription. 

289. 

278. 

Statutory  sheriff's   deeds. 

290. 

279. 

Sheriff's  deed  —  Under  de- 
cree. 

291. 

280. 

Masters',        commissioners', 
and  referees'  deeds. 

292. 

281. 

Trustees. 

Transfers  of  the  legal  es- 
tate by  trustees. 

Power  of  sale  and  trust  of 
sale  distinguished. 

Trustees'   deeds. 

Mortgagees'  deeds. 

Executors  and  administra- 
tors. 

Executors'   deeds. 

Administrators'  deeds. 

Administrator  with  will 
annexed. 

Guardians'  deeds. 

Trustees  can  not  become 
purchasers. 

Continued  —  Qualifications 
of  the  rule. 


§  270.  Defined  and  Distinguished.  Official  deeds  com- 
prise all  those  forms  of  conveyance  wherein  the  maker  acts  by 
virtue  of  an  office  and  not  in  his  individual  or  personal  ca- 
pacity. They  cover  a  wide  portion  of  the  field  of  conveyancing 
and  assume  a  variety  of  shapes,  but  may  be  reduced  to  two 
general  classes,  viz. :  those  made  in  a  fiduciary  capacity,  as  the 
deeds  of  trustees,  executors,  etc. ;  and  those  made  in  a  minis- 
terial character,  as  the  deeds  of  sheriffs,  commissioners,  mas- 
ters, etc.1  The  rules  for  construing  deeds  are  much  the  same, 
whether  the  deed  be  made  by  a  party  in  his  own  right,  or  by  a 
fiduciary  or  officer  of  the  court.2 

l  For  a  further  discussion  of  the  eery       Proceedings,"       "  Judgments 
subjects  of  this  chapter,  the  reader  and    Decrees  "    and    "  Probate    Pro- 
is   referred   to   the   chapters,   "  Exe-  ceedings  and  Descents." 
r:ution  and  Judicial  Sales,"  "  Chan-  2  White   v.  Luning2  93  U.  S.  515. 

338 


OFFICIAL    CONVEYANCES.  839 

§  271.  Official  Deeds  Generally.  It  is  the  policy  of  the 
law  to  invest  the  sheriff,  master  in  chancer)',  administrator, 
or  other  officer  making  sales  of  real  estate  in  a  purely  minis- 
terial capacity,  with  only  a  mere  naked  power  to  sell  such  title 
as  the  debtor,  deceased  person,  etc.,  had,  without  warranty,  or 
any  terms,  except  those  imposed  by  law.  Hence  purchasers 
at  such  sales  assume  the  risk  of  the  title,  as  well  as  the  validity 
of  the  proceedings  under  which  the  sale  is  made.3  The  power 
to  sell  lands,  however  conferred,  must,  as  a  rule,  be  strictly 
pursued,  otherwise  the  sale  will  be  void  and  no  title  will  pass,4 
and  a  deed  which  shows  on  its  face  an  excess  of  authority  in 
the  officer  executing  it,  will  not  be  sufficient  to  sustain 
the  title  of  one  claiming  under  it.5  Much  detail  will  fre- 
quently be  required  in  the  abstract  of  an  instrument  of  this 
character,  which  should  show  substantially  all  the  material 
parts  of  the  deed,  including  the  recitals  necessary  to  a  full  com- 
pliance with  the  law,  even  though  the  instrument  may  seem  at 
times  to  be  unreasonably  long.  A  judicious  condensation, 
where  the  full  spirit  of  the  original  is  retained,  may  be  ob- 
served to  good  purpose,  and  the  labor  of  examiner  and  counsel 
be  thereby  perceptibly  lightened,  but,  in  a  matter  of  this  kind, 
it  is  better  to  err  by  inserting  too  much  than  too  little. 

§  272.  Recitals.  It  is  customary,  and  in  many  cases  nec- 
essary, to  show  all  the  material  recitals  in  official  deeds,  not- 
withstanding that  such  recitals  are  regarded  only  as  matters 
of  inducement ;  G  but  where  the  form  of  a  deed  is  prescribed 
by  statute  they  become  substance  T  and  must  always  be  shown 

3  Bishop  v.  O'Connor,  69  111.  431.  one  would  take  and  pay  the  judg- 

4  King  v.  Whiton,  15  Wis.  684;  ment  and  costs,  and  was  held  void 
White  v.  Moses,  21   Cal.   44.  on  its  face. 

5  G.  B.  &  M.  C.  Co.  v.  Groat,  24  c  Leland  v.  Wilson,  34  Tex.  79 ; 
Wis.  210;  French  V.  Edwards,  13  Foulk  V.  Coburn,  48  Mo.  225;  War- 
Wall.  50G.  The  deed  in  this  case  ner  v.  Sharp,  53  Mo.  508;  Jones  v. 
Was  by  a  sheriff  under  a  judgment  Scott,  71  X.  C.  192.  A  clerical 
for  taxes.  Tlie  deed  recited  the  error  in  the  recitals  is  not  to  be  re- 
Bale  of  the  property  to  the  highest  garded  in  equity:  Stow  v.  Cteele, 
bidder,  when  he  was  authorized  by  45  111.  328.' 

the  statute  only  to  sell  the  smallesl  7  Atkins    v.    Kinnian,    20    Wend, 

quantity  of  the  property  which  any       249. 


340  ABSTRACTS    OF    TITLE. 

or  indicated  in  some  manner.  The  main  reason  why  such  re- 
citals should  be  shown,  arises  from  the  fact  that  thej  are 
usually  regarded  as  evidence  against  the  grantee  and  those 
claiming  under  him,8  and  as  to  such  parties  are  conclusive.9 
The  recitals  are  further  regarded  as  presumptive  evidence  of 
the  facts  stated,10  and  will  prevail  until  the  contrary  is  shown. 
These  remarks,  however,  have  reference  more  to  ministerial 
officers  than  to  fiduciaries.  The  recitals  in  the  deeds  of  the 
latter  are  material  to  show  a  due  execution  of  the  powers  given. 

§  273.  Covenants.  There  are  no  implied  covenants  in 
official  deeds,11  but  where  express  covenants  are  inserted  they 
have  been  held  to  bind  the  officer  personally.12  Sometimes  the 
deed  will  contain  what  is  known  as  the  "  trustee  covenant," 
which  is  to  the  effect  that  the  vendor  has  done  no  act  to  encum- 
ber the  estate.  If  express  covenants  of  any  kind  are  made  they 
should  be  shown  in  the  abstract. 

§  274.  Sheriff's  Deed  —  On  Execution.  A  sheriff's 
deed  made  in  pursuance  of  a  sale  on  execution  must  be  to  the 
person  to  whom  the  certificate  of  purchase  was  issued  or  to 
his  assignee,  and  if  the  deed  is  made  to  another,  though  it  re- 
cites that  he  is  the  assignee  of  the  certificate,  it  is  a  nullity  if, 
in  fact,  the  certificate  was  not  assigned.13  It  would  seem, 
therefore,  that  in  case  of  an  assignment  the  certificate  thereof 
should  affirmatively  appear  of  record  or  its  absence  be  noted  as 
a  substantial  defect.14 

To  establish  a  title  to  land  under  a  sheriff's  sale  on  execu- 
tion all  that  is  necessary  to  be  shown  as  a  general  rule,  is  a 

8  French    v.    Edwards,     13    Wall.  dock  V.  Stewart's  adm'r,  6  Ala.  77; 
506;    Fisk   V.   Frores,  43   Tex.   340;  Magee  V.  Mellon,  23  Miss.  586. 
Lamar  v.  Turner,  48  Ga.  329.  13  Carpenter    v.    Sherfy,     71     111. 

9  Durette  v.  Briggs,  47  Mo.  356;  427;  compare  Bowman  V.  Davis,  39 
Pringle  v.  Dunn,  37  Wis.  449 ;  Rob-  Iowa,  398. 

ertson  v.  Guerin,  50  Tex.  317.  1 4  Where  there  has  been  an  assign- 

10  Chase  v.  Whiting,  30  Wis.  544.  ment  of  the  certificate  of  sale  the  re- 

11  Webster  V.  Conley,  49  111.   13.  cital  in  the  sheriff's  deed  of  such  cer- 

12  Prouty  v.  Mather,  49  Vt.  415;  tificate  and  assignment  is  evidence 
Sumner  v.  Williams,  8  Mass.  162;  of  their  existence,  and  after  the  exe- 
Mitchell  v.  Haven,  4  Conn.  485;  cution  of  the  deed  such  certificate 
Aven   v.   Beckom,    11    Ga.    1;    Crad-  and  assignments  thereof  cease  to  be 


OFFICIAL    CONVEYANCES.  341 

valid  judgment,  or,  as  has  been  held,  a  judgment  by  a  court  of 
competent  jurisdiction,  no  matter  if  it  be  erroneous  on  its 
face;15  execution  duly  issued;16  and  a  sheriff's  deed.17  But 
in  all  cases  the  judgment  is  the  foundation  of  the  title,18  and 
proof  of  such  judgment  is  indispensable  to  its  validity.19  As 
the  sheriff  is  only  the  executor  of  a  naked  power  it  is  necessary 
that  his  deed  should  show  substantial  compliance  with  the  terms 
creating  the  power  as  well  as  its  proper  execution,  yet  the 
recitals  of  a  sheriff's  deed,  as  a  general  rule,  are  to  be  regarded 
only  as  inducement,20  and  where  the  deed  substantially  com- 
plies with  the  statutory  requirements,  it  is  not  invalidated  by 
ambiguous  recitals  or  omissions  which  do  not  mislead.21 

It  is  said  that  the  statute  requiring  recitals  in  a  sheriff's 
deed  was  not  intended  to  make  deeds  void  which  do  not  contain 
them,  but  was  only  intended  to  make  the  recitals  evidence  of 
the  facts  recited ;  and  when  such  recitals  are  full,  they  dis- 
pense with  the  necessity  of  introducing  the  judgment  and  exe- 
cution in  evidence.  So  far  as  such  a  statute  requires  recitals 
beyond  what  are  necessary  to  show  the  authority  of  the  offi- 
cer to  sell,  it  is  merely  directory,22  and  where  the  deed  dis- 
closes sufficient  to  show  the  authority  to  sell,  even  though  the 
particular  judgment  and  execution  be  not  recited,  so  long  as 
it  appears  to  be  by  virtue  of  a  judgment  and  execution,  the 
sale  and  conveyance  will  be  valid,  if,  at  the  time  of  such  sale, 
the  sheriff  had  in  his  hands  a  valid  execution.23     Defects  of 

essential      muniments         of        title  (111.)    437;    Leland    v.    Wilson,    34 

(Gardner  v.  Eberhart,  82  111.  316),  Tex.    79;    Todd  v.   Philhour,   24   N. 

yet,  as  a  precautionary  measure,  it  J.  L.  796. 

is  always  well  to  display  these  facts  19  Carbine  v.  Morris,  92  111.  555. 

in  the  abstract.  20  Leland  v.  Wilson,  34   Tex.   79. 

15  Mayo    v.    Foley,    40    Cal.    281;  21  Allen    v.    Sales,    56    Mo.    28; 

and  see  Den  V.  Taylor,  16  N.  J.  L.  Jones     V.     Scott,     71     N".    C.     192; 

532.  Loomis  v.  Riley,  24  111.  307;  Keith 


10  Fischer  v.  Eslaman,  68  111.  78 
Den  v.  Despreaux,  12  N.  J.  L.  182 

17  Riddle  v.  Bush,  27  Tex.  675 
Hughes  v.  Watt,  26  Ark.  228 
Splahn   v.    Gillespie,    48    Ind.    397 


v.  Keith,  104  111.  397. 

22  Clark  v.  Sawyer,  48  Cal.  133; 
Jordan  v.  Bradshaw,  17  Ark.  106; 
Holman  v.  Gill,   107  111.  467. 

23  Jones  v.   Scott,   71   N.   C.   192; 


Lenox  v.  Clark,  52  Mo.   115.  Clark  v.  Sawyer,  48  Cal.  133;  Per- 

18  Atkins    v.    Hinman,     2    Gilm.       kins  v.  Dibble,  10  Ohio  443. 


342  ABSTRACTS    OF    TITLE. 

form  are  leniently  regarded,  and  the  instances  are  very  rare, 
observes  Mr.  Freeman,  "  in  which  a  deed,  issued  in  pursuance 
of  an  execution  or  chancery  sale,  is  void  for  errors,  defects, 
or  mistakes  in  form."  24 

Where  a  deed  alone  is  relied  upon  it  must  show  upon  its 
face  the  officer's  authority  as  well  as  all  other  essential  require- 
ments of  a  valid  sale,25  but  it  may  always  be  aided  by  the 
return  on  the  execution,215  and  where  the  judgment  and  exe- 
cution are  both  shown  omissions  in  the  deed  are  generally  im- 
material, provided  the  deficiency  is  supplied  by  the  writ  and 
return.27 

§  275.  Continued  —  Acknowledgment.  Unlike  volun- 
tary conveyances  between  individuals,  it  is  essential  to  the 
validity  of  a  sheriff's  deed,  for  land  sold  by  him  under  an  exe- 
cution, that  it  should  have  been  legally  acknowledged.  It  is 
true  that  a  sheriff's  deed  gives  the  vendor  an  inceptive  inter- 
est in  the  land,  but  he  has  no  right  to  enter,  and  no  claim  upon 
.the  property,  as  against  the  former  owner,  until  after  the  deed 
is  acknowledged.  The  property  is  conveyed  against  the  will 
of  the  judgment  debtor;  the  conveyance  is  not  his  act,  but 
the  act  of  the  law ;  and  the  law,  when  acknowledgment  is 
requisite,  must  be  strictly  complied  with.28  Where  the  ac- 
knowledgment is  defective  the  deed  is  not  aided  by  record.23 
Proof  of  official  character  is  rarely  necessary,  however,  for 
the  law  recognizes  such  officers  as  sheriffs  and  deputy  sher- 
iffs, and  instruments  executed  by  them  in  the  course  of  their 
official  duties  are  usually  sufficient  in  themselves  to  prove  that 

24  Freeman,  Void  Jud.  Sales,  §  28  Evan  v.  Carr,  49  Mo.  483; 
45.  The  deed,  however,  must  be  Adams  v.  Buchanan,  49  Mo.  64. 
what  it  purports  to  be,  hence  a  But  see  contra,  Stephenson  v. 
deed  lacking  a  seal  conveys  no  title:  Thompson,  13  III.  186,  where  it  is 
Hinsdale  V.  Thornton,  74  N.  C.  held  that  the  deed  may  be  proved 
167;  Kruse  V.  Wilson,  79  111.  233.  by  other   evidence   ,and   though   un- 

25  Hill  v.  Reynolds,  93  Me.  25.  acknowledged  it  is  still  valid. 

20  Welsh  v.  Joy,  13  Pick.  (Mass.)  29  Samuels    v.    Shelton,    48    Mo. 

477;  Stinson  v.  Ross,  51  Me.  556.  444. 

27  Hayward    v.    Cain,    110    Mass. 
273. 


OFFICIAL    CONVEYANCES.  3-Jr3 

they  were  the  officers,  in  fact  and  in  law,  which  by  their  acts 
they  profess  to  be.30 

§  276.  Continued  —  Operation  and  Effect.  A  sheriff's 
deed  is  prima  facie  evidence  that  the  grantee  holds  all  the  title 
and  interest  in  the  land  that  was  held  by  the  judgment  debtor 
at  the  time  of  the  rendition  of  the  judgment,  and  operates 
back,  by  relation,  to  the  date  of  such  rendition  so  as  to  extin- 
guish all  rights  and  equities  in  and  to  the  premises  derived 
from  the  judgment  debtor  in  the  meantime.31  And  not  only 
the  entire  interest  of  the  judgment  debtor  passes  by  the  deed, 
but  also  such  covenants  of  title  as  run  with  the  land.32  If 
made  to  a  bona  fide  purchaser,  and  regular  in  itself,  it  is  ef- 
fectual as  a  conveyance,  and  can  not  be  impeached  in  any  col- 
lateral proceeding  for  mere  irregularity,  in  any  of  the  pro- 
ceedings, judgment,  execution  or  return.33 

It  will  operate  against  the  judgment  debtor  by  estoppel,  and 
he  will  be  precluded  from  setting  up  an  outstanding  title  to 
avoid  the  sale  by  the  sheriff,  or  to  deny  the  title  thereby  ac- 
quired by  the  purchaser.34  As  an  exception  to  this  rule,  it 
has  been  held,  that  if,  after  the  sale,  the  judgment  debtor 
abandons  the  land,  and  afterward  returns  to  it,  and  is  sued  in 
ejectment,  he  may  show  an  outstanding  title,  provided  he  also 
shows  that  he  has  taken  possession  and  holds  under  it,  and  the 
same  rule  applies  to  a  purchaser  holding  under  the  judgment 
debtor  or  defendant  in  execution.35 

30  Ochoa   v.  Miller,   59   Tex.   460.  (Ky.)     254;    Jackson    V.    Bush,    10 

31  Shields  v.  Miller,  9  Kan.  390;  Johns.  223;  Jackson  v.  Hagaman, 
White  v.  Davis,  50  Mo.  333;  Fergu-  1  Wend.  502;  Gould  v.  Hendrick- 
son  v.  Miles,  3  Gilm.  (111.)  358;  son,  6  111.  599.  But  see  Kenyon  V. 
Miller  v.  Wilson,  32  Md.  297;  Kirk  Quinn,  41  Cal.325,  where  it  is  held, 
v.  Vanberg,  34  111.  440.  that   a   statutory    provision   to    the 

32  Whiting  v.  Butle^  29  Mich.  effect  that  a  conveyance  of  land  in 
122;  White  v.  Whitney,  3  Met.  81;  fee  simple  shall  convey  the  legal 
Leport  V.  Todd,  32  N.  J.  L.  124.  estate    afterward    acquired    by    the 

38  Landets     v.     Brant,     10     How.  grantee,    has    no    application    to    a 

371;  Draper  v.  Bryson,  17  Mo.  71;  sheriff's  deed  made  under  execution 

Maurior  v.  Coon,   16  Wis.  405.  sale. 

34  Matney    v.     Graham,     59     Mo.  35  Gould   v.   Hendrickson,   96   111. 

190;    Reid    v.    Heasley,    2    B.    Mon.  599. 


344  ABSTRACTS    OF    TITLE. 

The  recording  of  a  sheriff's  deed  operates  as  constructive 
notice  only  to  those  who  hold  or  claim  under  the  judgment  de- 
fendant; strangers,  and  those  claiming  under  an  independent 
or  hostile  title,  are  not  affected  thereby.36 

§  277.  Continued  —  Imperfect  Description.  The  only 
remedy  for  a  false  description  in  a  sheriff's  deed  is  to  obtain 
a  new  deed  in  the  court  whence  the  process  issued.  Equity 
will  not  aid  the  imperfect  execution  of  a  statutory  power.37 
It  follows,  therefore,  that  if  the  description  fails  to  show  with 
certainty  what  property  was  in  fact  sold,  or  if  in  order  to  ascer- 
tain such  fact  it  becomes  necessary  to  institute  an  extraneous 
inquiry,  the  deed  is  void  38  and  no  title  will  pass  thereunder. 
Where  the  deed  has  been  lost  before  registration,  the  officer 
may,  it  seems,  execute  a  substitute.39 

§  278.  Statutory  Sheriff's  Deeds.  To  overcome  the 
consequence  of  mis-recitals,  prevent  collateral  impeachment, 
and  give  the  full  desired  effect  of  conveyances  by  the  sheriff, 
the  legislatures  of  a  majority  of  the  States  have  prescribed 
certain  forms  of  official  deeds  and  declared  their  legal  effect. 
As  in  case  of  statutory  forms  of  deeds  between  individuals, 
these  instruments  contemplate  but  little  verbiage,  the  statute 
supplying  what  was  formerly  obtained  by  long  and  technical 
recitals.  Only  enough  matter  of  inducement  is  given  to  iden- 
tify the  judgment,  execution,  and  sale,  and  to  show  the  au- 
thority of  the  officer,  while  the  granting  portion  is  confined  to 
the  fewest  legal  essentials.  The  deed,  in  itself,  is  little  else 
than  an  abstract,  and  contains  scarcely  anything  that  must  not 
also  be  shown  in  presenting  a  synopsis  of  it.  The  example 
which  follows  is  an  abstract  of  the  form  now  in  use  in  Illinois, 

36  Gardner  v.  Jaques,  42  Iowa,  would  relate  back  to  the  date  of 
577.  the  first  one:   Kruse  v.  Wilson,  79 

37  Ware  V.  Johnson,   55  Mo.  500.       111.  233. 

But  where  a  sheriff  executed  a  deed  38  Evans   V.   Ashley,    8   Mo.    177; 

at  the  proper  time,  but  omitted  to  Jackson  v.  Delancey,  13  Johns.    (N. 

affix   a   seal   or   scrawl   thereto,   the  Y. )     536;     Cunningham    v.    McCol- 

successor    of    the    sheriff    executed  lum,  98  Ind.  38. 

another  deed  in  proper  form,  and  it  39  McMillan    V.    Edwards,    75    N. 

was  held  that  this  subsequent  deed  C.  81. 


OFFICIAL    CONVEYANCES.  345 

but  which,  so  far  as  the  observation  of  the  writer  has  gone, 
differs  but  slightly  from  those  now  employed  in  other  States. 


Sheriff's  Deed. 

Dated,,  etc. 
*         *         * 


Seth    Hanchett,    Sheriff    of 
Cook  County,  III., 

to 
William  B.  Denton. 

Recites  that  whereas,  A.  B.  did,  at  the  May  term  of  the 
Circuit  Court  of  Cook  County,  1880,  recover  a  judgment 
against  C.  D.  for  the  sum  of  $100.00,40  and  costs  of  suit,  upon 
which  an  execution  was  issued  dated  June  2,  1880,  directed  to 
said  sheriff  to  execute,  by  virtue  of  which  the  said  sheriff  levied 
upon  the  premises  41  hereinafter  described;  and  the  time  and 
place  of  the  sale  thereof  having  been  duly  advertised  according 
to  law,  the  same  were  struck  off  and  sold  to  William  B.  Den- 
ton, he  being  the  highest  and  best  bidder  therefor. 

Therefore,  said  sheriff,  in  consideration  of  the  premises,  con- 
veys to  said  second  party  the  following  described  parcel  of  land 
[describing  the  same]. 

Acknowledgment. 

The  legal  effect  of  this  brief  deed,  as  declared  by  statute, 
is  to  convey  to  the  grantee  therein  named,  all  the  title,  estate, 
and  interest  of  the  person  against  whom  the  execution  was  is- 
sued, of  every  nature  and  kind,  in  and  to  the  lands  thereby 
conveyed,  but  implies  no  covenants  on  the  part  of  the  officer 
executing  same.     It  is  further  prima  facie  evidence  that  the 

40  A    statutory    provision    which  be    readily    found    and    identified: 

prescribes    the    form    of    a    sheriff's  Holman  v.  Gill,  107  111.  4G7. 

deed,    so    far    as    it    requires    the  41  This    word,     although    errone- 

amount  of  the  judgment  to  be  in-  ously  employed,  is  the  one  generally 

serted  in  the  deed,  is  merely  direct-  prescribed    by    statute,    and,    when 

ory.     It    is    sufficient    if    it    clearly  such   is   the  case,   should   be   shown 

appears,  that  the  deed  is  made  by  in    the    abstract    as    found    in    the 

the   officer   in   his    official    capacity,  deed.     It   is    only   another    illustra- 

and   in   consummation   of  the   legal  tion    of   the    careless   and    bungling 

proceedings  upon  which  it  is  found-  manner   in    which    legal    terms    and 

ed,  with  such  references  to  the  pro-  phrases  are  sometimes  employed  by 

eeedings  themselves  that  they  may  the  law-makers. 


346  ABSTRACTS    OF    TITLE.       ' 

provisions  of  law  in  relation  to  the  sale  of  the  property  for 
which  it  is  given  were  complied  with ;  and  in  case  of  the  loss  or 
destruction  of  the  record  of  the  judgment,  or  of  the  execu- 
tion or  levy  thereon,  is  iprima  facie  evidence  of  the  re- 
covery and  existence  of  the  judgment,  and  of  the  issuing  and 
levy  of  the  execution  as  therein  recited.42 

§  279.  Sheriff's  Deed  —  Under  Decree.  Though  a 
master,  commissioner  or  referee  is  the  medium  through  which 
a  court  of  chancery  ordinarily  executes  its  decrees,  the  duty 
not  infrequently  devolves  upon  the  sheriff  either  by  virtue  of 
his  office  or  through  special  appointment.  While  acting  under 
a  decree  he  occupies  the  same  position  as  a  commissioner,  and 
is  but  a  ministerial  officer  of  the  court,  to  whom  he  must  make 
reports  of  his  acts  and  by  whom  they  must  be  confirmed  before 
conveyances  can  be  lawfully  made.43  His  deed,  like  a  mas- 
ter's, recites  his  authority,  details  his  acts,  and  takes  effect  as 
a  conveyance  in  the  same  manner.44 

§  280.  Masters',  Commissioners'  and  Referees'  Deeds. 
The  conveyances  of  a  master  in  chancery,  commissioner,  or 
referee,  differ  in  no  material  resj)ect  from  those  of  a  sheriff 
acting  under  a  decree,  the  power  exercised  being  the  same  in 
each  instance,  and  the  principles  which  govern  the  one  operat- 
ing with  equal  force  upon  the  others.  Like  the  conveyances 
of  the  sheriff,  their  deeds  are  without  warranty,  or  any  terms 
except  those  imposed  by  law,  and  they  convey  only  such  titles 
as  the  defendant  possessed.  The  recitals  of  this  class  of 
deeds  are  usually  long  and  verbose  and  should  be  judiciously 
condensed  by  the  examiner  to  show  all  that  is  material  in  as 
few  words  as  possible.  The  special  formal  parts  are  those 
which  relate  to  the  title  and  authority  of  the  officer,  and  the 
recitals  showing  a  due  compliance  with  the  decree.  In  the  ab- 
stract the  deed  immediately  follows  the  court  proceedings  and 
certificate  of  sale,  and  may  be  shown  briefly,  as  follows : 

42  R.   S.   111.    1874,  Ch.   77.  44  See    the    remarks    relative    to 

43  Taylor  v.  Gilpin,  3  Met.  (Ky.)  deeds  of  other  ministerial  officers, 
544;  Hunting  v.  Walker,  33  Md.  and  the  chapter  on  "Execution  and 
60.  Judicial    Sales." 


OFFICIAL    CONVEYANCES.  317 


Henry  W.  Bishop,  as  Master 
in  Chancery  of  the  Circuit 
Court  of  the  United  States 
for  the  Northern   District 
of  Illinois, 
to 
Silas  Wegg,  Jr. 
Doc.  12k,35h. 


Master  s  Deed. 
Dated  June  10,  1881. 
Recorded,  July  12,  1881. 
Booh  If  10,  page  65. 
Sets  forth  that  in  pusuance 
of  a  decree  entered  March  13, 
1881,  by  said  Court  in  a  cer- 
tain case  then  pending  there- 
in wherein  John  Doe  was 
Complainant,  and  Richard  Roe,  Defendant,  the  said  Master 
duly  advertised,  according  to  law,  the  lands  and  tenements  here- 
inafter described,  for  sale  at  public  auction  to  the  highest 
and  best  bidder,  for  cash,  at  two  o'clock  P.  M.,  on  Monday, 
June  1,  1880,  at  the  north  door  of  the  U.  S.  Custom  House 
and  Post  Office,  in  the  City  of  Chicago,  Cook  County,  Illinois. 
That  at  the  time  and  place  so  as  aforesaid  appointed  for  said 
sale,  the  said  Master  attended  to  make  the  same,  and  offered 
said  premises  for  sale  at  public  auction,  to  the  highest  and  best 
bidder,  for  cash,  and  thereupon  Silas  Wegg,  Jr.,  offered  and 
bid  therefor  $125.00,  and  that  being  the  highest  and  best  bid 
offered,  said  Master  accordingly  struck  off  and  sold  to  said 
Silas  Wegg,  Jr.,  for  said  sum  of  money,  the  said  premises,  and 
did  thereupon  sign,  seal  and  deliver  to  said  Silas  Wegg,  Jr., 
the  usual  Master's  Certificate  therefor,  and  that  said  premises 
have  not  been  redeemed  from  said  sale.  Now,  therefore,  in 
consideration  of  the  premises  conveys;  [Here  follows  the  de- 
scription of  the  property.] 

Certificate  of  acknowledgment  dated  June  10,  1881. 

§  281.  Trustees.  A  trustee  is  denned  as  a  person  in 
whom  some  estate,  interest,  or  power  in  or  affecting  property 
of  any  description  is  vested  for  the  benefit  of  another,45  and 
though  the  name  is  technically  applied  to  a  particular  class, 
it  also,  to  a  certain  extent,  comprises  executors,  administra- 
tors, guardians,  assignees,  etc.     Where  the  legal  title  of  a  trus- 

45  2  Bou.  Law  Dirt.  616. 


348  ABSTRACTS    OF    TITLE. 

tee  is  created  by  the  owner  of  the  property,  the  right  of  the  trus- 
tee to  enforce  it  will  be  recognized  everywhere ;  but  where  such 
title  is  derived  solely  from  some  act  of  the  law,  the  effect  of 
that  act  is  confined  to  the  territorial  jurisdiction  over  which 
the  law  extends.46  Upon  the  death  of  a  trustee,  the  legal  title 
to  the  estate  devolves  upon  his  heir  at  law;  and  the  heir  takes 
the  same  estate,  and  is  subject  to  exactly  the  same  duties  and 
responsibilities  as  his  ancestor.47 

But  in  case  of  more  than  one  trustee,  the  rule  would  be  dif- 
ferent, for  by  the  common  law,  and  usually  by  the  statute  as 
well,  the  estate  of  trustees  is  held  in  joint  tenancy,  and  hence, 
upon  the  death  of  one  of  several  trustees  nothing  passes  to  the 
heir  or  personal  representatives,  but  the  whole  estate  devolves 
upon  the  survivors.48 

Being  founded  on  personal  confidence,  it  necessarily  results 
that  a  trustee  can  not  delegate  his  trust  to  others,49  neither  can 
he  profit  by  his  trust  estate,50  nor  become  a  purchaser  at  any 
sale  thereof  by  him,51  while  the  power  under  which  he  acts 
must  in  all  cases  be  strictly  pursued  to  render  such  acts  valid.52 

A  joint  power  of  sale  must  be  executed  by  all,  provided  all 

46  Curtis  V.  Smith,  6  Blackf.  edge  of  the  trust,  or  where  such 
(Ind.)    537.  other    person    in    any    manner    ac- 

47  Watkins  v.  Specht,  7  Coldw.  quires  the  legal  estate  with  such 
(Tenn.)    585;   McMullen  V.  Lank,  4  knowledge,    he    holds    the    property 

Houst.    (Del.)   648.     By  force  of  the  subject   to    the    trust    and    may   be 

statute  the  trust  sometimes  vests  in  compelled   in  equity  to  execute  it: 

some    tribunal     in    the    county    in  Byan  v.  Doyle,  31  Iowa,  53;   Smith 

which    the    trust    property    is    situ-  v.  Walser,  49  Mo.  250. 

ated,    which,    upon    the    application  50  Faucett    V.     Faucett,     1    Bush 

of   some    person    interested    in     the  (Ky.),  511. 

trust,  forthwith  appoints  a  sue-  '  51  Terwelliger  v.  Brown,  44  N.  Y. 
eessor  to  the  deceased  trustee,  237.  This  is  the  universally  ac- 
whereupon  the  trust  vests  in  the  cepted  doctrine,  but  is  subject  to 
newly  appointed  trustee :  Collier  v.  some  qualifications,  the  law  not  ex- 
Blake,   14  Kan.  250.  acting    the    same    rigid    degree    of 

48  Golder  v.  Brewster,  105  Ills.  strictness  in  all  the  States.  Clark 
419.  v.    Clark,    65    N.    C.    655,    and    see 

49  Grover   v.    Hale,    107    111.    638.  "  Trustees  as  Purchasers,"  infra. 
But  where  the  trustee  conveys  the  52  Huntt   v.    Townshend,    31    Md. 
legal    title    to    one    having    knowl-  336. 


OFFICIAL    CONVEYANCES.  349 

are  living  and  in  condition  to  act,53  unless  the  instrument  cre- 
ating the  trust  provides  otherwise,54  for  the  interest  held  by 
several  trustees  is  an  entirety,  and  can  only  pass  as  a  whole ; 
hence  all  the  trustees  living,  having  an  interest  in  the  property, 
must  join  in  the  conveyance,  otherwise  it  will  be  wholly  in- 
operative.55 But  in  case  of  the  death  of  one  or  more  of  the 
trustees,  the  survivor  or  survivors  will  hold  the  trusts  and  may 
execute  the  powers.56  A  deed  by  the  survivors,  representing  the 
entire  title,  will  be  good,  even  though  they  are  authorized  to  fill 
the  vacancy,  as  it  is  only  where  the  terms  of  the  power  creating 
the  trust  inrperatively  require  the  vacancy  to  be  filled,  that 
the  acts  of  the  survivors  will  be  invalid.57 

The  questions  suggested  by  the  foregoing  statements  are 
many,  and  will  readily  present  themselves  to  counsel  upon  the 
examination  of  an  abstract.  To  satisfactorily  solve  them  the 
grant  of  power  must  be  exhibited  in  the  chain,  or,  if  made 
prior  to  the  commencement  of  the  search,  a  requisition  for  its 
production  must  be  made,  that  it  may  satisfactorily  appear, 
from  actual  inspection,  that  the  proceedings  of  the  trustees  have 
been  regular  and  in  conformity  to  the  terms  of  the  instrument 
creating  the  trust. 

§  282.  Transfers  of  the  Legal  Estate  by  Trustees. 
The  doctrine  of  the  obligation  of  purchasers  to  observe  the 
proper  application  of  the  purchase  money,  in  cases  of  sales 
by  trustees  and  other  fiduciaries,  was  formerly  very  intricate, 
abounding  in  many  technicalities  and  subtilties;  but  these,  in 
a  large  measure,  have  been  swept  away  by  special  statutes 
in  England,  while  in  the  United  States  the  old  English  doc- 
trine has  rarely  been  administered  except  in  cases  of  fraud 
in  which  the  purchaser  was  a  participant.  The  general  rule 
now  is,  and  for  years  past  has  been,  that  a  purchaser  who  in 

53  Learned  V.  Welton,  40  Cal.  419;  Brennan  V.  Willson,  71  N.  Y. 
349.  502. 

54  Gould  v.  Mather,  104  Mass.  56  Lane  v.  Debenham,  1 1  Hare, 
283.  188. 

55Golder    v.    Brewster,    105    111.  57  Golder    v.    Brewster,     105    111. 

419. 


350  ABSTRACTS    OE    TITLE. 

good  faith  pays  the  purchase  money  to  a  person  authorized  to 
sell,  is  not  bound  to  look  to  its  application;  and  there  is  no 
difference  in  this  respect,  between  lands  charged  in  the  hands 
of  a  devisee  with  the  payment  of  debts,  and  lands  devised  to  a 
trustee  to  be  sold  for  that  purpose.58 

"  The  present  wTell-established  rule  of  law  in  regard  to  trust 
estates  is."  says  Mr.  Bedfield,09  "  that  when  the  trustee  holds 
the  trust  estate  for  the  purpose  of  sale  and  conversion  into 
money,  or  with  a  power  of  sale  and  conversion,  any  one  who 
in  good  faith  accepts  such  transfer  upon  adequate  compensa- 
tion, will  acquire  a  valid  title.  But  if  the  trustee  has  no 
power  of  sale  the  purchaser  will  acquire  no  title  unless 
he  show  that  the  purchase  money  has  been  applied  to  the  pur- 
poses of  the  trust.  It  is  this  which  marks  the  true  distinction 
between  the  cases,  where  the  purchaser  is  bound  to  see  to 
the  application  of  the  purchase  money  and  where  he  is  not. 
For  if  the  trustee  has  no  power  of  sale,  any  transfer  by  him 
will  be  wholly  inoperative  and  the  trust  will  attach  to  the 
trust  property  in  the  hands  of  the  vendee  the  same  as  in  the 
hands  of  the  trustee,  until  it  appears  that  the  money  paid  by 
the  vendee,  to  the  full  value  of  the  trust  property,  has  been  ap- 
plied to  the  purposes  of  the  trust."  60 

§  283.  Power  of  Sale  and  Trust  of  Sale  Distinguished. 
In  the  execution  of  testamentary  trusts  questions  of  title  are 
frequently  raised  on  the  construction  of  the  authority  under 
which  the  trustee  effected  the  sale,  but  the  same  questions  may 
sometimes  arise  under  deeds  of  trust.  "  The  more  common 
case  of  trusts  with  power  of  sale,"  observes  Mr.  Eedfield,61 
"  is  where  the  testator  devises  his  estates,  together  with  all  his 
personalty,  directing  that  the  latter  be  first  applied  in  the  pay- 
ment of  debts  and  legacies;  and  in  default  of  it  proving  suffi- 

ssCryders    Appeal,     11     Pa.    St.  09  3    Redf.    on    Wills     (3d    Ed.), 

72;    Champlin  v.   Haight,    10   Paige  620. 

(X.   Y. ),  275;    White   v.   Carpenter,  GO  And   see,    Hughes   v.   Tabb,    78 

2   Paige    (X.   Y.),   217;    Gardner  v.  Ya.   325;    Turner   v.    Hoyle,   95  Mo. 

Gardner,    3    Mason     (C.    Ct.),    178,  337;   Jacks   v.   State,  44  Ark.  61. 

and  see  Warvelle  on  Vendors,  §  573.  ei  ;]  Redf.  on  Wills  (3d  Ed.),  551. 


OFFICIAL    CONVEYANCES.  351 

cient,  that  the  real  estates  be  sold  by  the  trustees,  either  gen- 
erally, in  their  discretion,  or  in  some  order  named  in  the  will." 
In  such  case,  the  learned  author  contends  that  it  would  be 
the  duty  of  the  trustees  to  assure  themselves  that  a  deficiency 
in  the  personalty  has  really  occurred  before  they  can  properly 
proceed  to  sell  real  estate,  and  distinguishes  between  a  trust 
and  power  of  sale  in  this  manner :  "  A  power  of  sale,  in  the 
event  of  the  personal  estate  proving  insufficient  to  pay  debts 
or  legacies,  or  both,  is  a  power  depending  upon  a  condition 
precedent,  and  will  not  attach  unless  the  condition  occur ;  and 
a  sale  under  such  a  power,  when  the  condition  had  not  in 
fact  occurred,  will,  of  course,  convey  no  title.  It  is,  there- 
fore, in  a  case  of  this  kind  essential,  that  all  persons  inter- 
ested in  the  purchase  and  in  acquiring  a  good  title,  should  as- 
sure themselves  that  the  power  has  really  attached.  In  such 
a  case  the  receipt  of  the  money  by  the  appointee  will  have 
no  effect  upon  the  passing  of  the  title,  and  will  commit  no  one 
to  its  application  or  repayment  except  the  person  receiving  it. 
But  in  the  case  of  a  trust  for  sale  under  a  will,  the  title  having 
passed  to  the  trustee,  the  title  will  pass  upon  any  such  sale  as 
rests  upon  an  apparent  occurrence  of  the  emergencies  justify- 
ing a  sale ;  and  the  payment  of  the  money  by  the  purchaser  to 
•the  trustee,  and  his  receipt  for  same,  will  exonerate  the  pur- 
chaser from  all  responsibility."  62 

The  exercise  of  trusts  and  powers  is  now  very  generally 
controlled  by  statute.  A  trust  not  allowed  by  the  statute  is 
wholly  invalid  and  no  estate  vests  in  the  trustees;  but  a  trust 
directing  or  authorizing  the  performance  of  any  act  which  may 
be  lawfully  performed  under  a  power,  will  still  be  valid  as  a 
power  in  trust,63  subject  to  the  provisions  of  the  statute  in  rela- 
tion to  powers.  Where  the  trust  given  does  not  purport  t<»  be 
a  trust  of  sale,  but  simply  a  power  in  trust,  a  deed  made  by 
the  executor  under  it,  will  convey  title  to  the  purchaser,  and 

"2.3    Redf.    on    Wills     (3d    Ed.),  63  Downing  v.  Marshall,  23  N.  Y. 

552,    citing    Walker    v.    Smallwood,       366. 
Amb.   (Eng.  Ch.),  676. 


352  ABSTRACTS    OF    TITLE. 

this,  notwithstanding  the  fact  that  the  land  in  question  is  de- 
vised absolutely  by  the  will.64 

§  284.  Trustees'  Deeds.  Titles  derived  through  trustees' 
deeds  require  close  scrutiny,  for  where  a  deed  of  trust  mi- 
nutely and  particularly  prescribes  the  circumstances  under 
which,  and  the  manner  in  which,  the  trustees  shall  have  au- 
thority to  sell  the  trust  property,  they  have  no  power  or  author- 
ity to  dispose  of  such  property  under  any  other  circumstances 
or  in  any  other  manner.65  Fiduciaries  and  trustees,  if  they 
exceed  or  violate  their  authority,  are  responsible,  though  no 
bad  faith  prompted  their  acts;  and  those  who  deal  with  them 
on  the  faith  of  the  trust  estate,  must  be  aware  that  they  exer- 
cise only  limited  and  delegated  powers,  and  are  bound,  at  their 
peril,  to  take  notice  of  such  powers  and  see  to  it  that  they  con- 
fine themselves  within  their  scope.66 

A  trustee  having  once  accepted  the  trust  in  any  manner,  a 
purchaser  can  not  safely  dispense  with  his  concurrence  in  a 
sale  of  the  trust  estate,  notwithstanding  he  may  have  attempted 
to  disclaim,  and  although  he  may  have  released  his  estate  to 
his  co-trustees.  All  the  trustees,  in  case  of  several,  must  unite 
in  a  disposal  of  the  trust  property,  and  a  deed  by  two,  while 
a  third  is  living,  is  not  valid.  The  trustees  take  as  joint  ten- 
ants, and  must  all  unite  in  the  execution  of  the  trust,  and 
especially  in  a  deed  of  lands. 

A  trustee  can  not  delegate  any  duty,  unless  the  power  to 
delegate  is  expressly  given,  which  involves  the  exercise  of  any 
discretion  or  judgment.  Mere  mechanical  or  ministerial  du- 
ties may  be  performed  by  others.  The  particular  medium  of 
advertisement,  the  manner  of  conducting  the  sale,  the  best 
method  of  offering  the  property,  the  question  of  postponement 
of  the  sale,  and  the  sale  itself,   are  matters  regarding  which, 

64  Crittenden  v.  Fairchild,  41   N.  65Huntt   v.    Townshend,    31    Md. 

Y.    289.     In   this   case   it   was   held  336. 

that   such   power   was   not   inconsis-  66  Owen    V.    Reed,    27    Ark.    122; 

tent  with  the  devise,  but  the  estate  Vernon  v.  Board  of  Police,  47  Miss, 

vested   in    the    devisees,    subject   to  181;  Ventres  v.  Cobb,  105  111.  33. 
the  execution  of  the  power.  » 


OFFICIAL    CONVEYANCES.  353 

when  they  are  not  prescribed  by  the  instrument  under  which 
he  acts,  special  trust  and  confidence  are  reposed  in  the  trus- 
tee; and  they  can  not  be  delegated  to  an  agent.67  All  these 
duties  are  usually  matters  of  recital  in  the  trustee's  deed,  and 
it  is  advisable  that  they  be  shown  in  the  abstract  substantially 
as  there  stated. 

Where  the  trust  deed  forms  a  portion  of  the  examination, 
the  trusts  and  conditions  should  fully  appear  in  the  abstract 
of  that  document,  and  reference  to  them  will  be  sufficient  in 
preparing  the  synopsis  of  the  trustee's  deed.  Should  the  trust 
deed  not  be  included  in  the  examination  the  conditions  as  re- 
cited in  the  deed  may  be  given,  or  a  note  substantially  embody- 
ing them  may  be  appended,  as  per  the  example  shown.  Here 
is  an  example  of  a  trustee's  deed  made  on  foreclosure  and  in 
pursuance  of  a  power  of  sale : 


Pliny  B.  Smith, 

Trustee, 
to 
William,  Thompson, 
Document  100S. 


Trustee's  Deed. 

Dated  Jan.  5,  1882. 

Recorded  Jan.   6,  1882. 

Booh  500,  page  520. 

Recites,  that  John  Peter- 
son and  Maria,  his  wife,  by 
a  Trust  Deed,  dated  May  1,  1880,  and  recorded  May  3,  1880, 
in  book  410,  page  512,  conveyed  to  Pliny  B.  Smith,  as  Trus- 
tee, all  the  lands  hereinafter  described,  to  secure  the  payment 
of  $1,000,  to  Hiram  Jones,  in  one  year  from  May  1,  1880, 
evidenced  by  said  Peterson's  one  promissory  note  of  even  date 
with  said  Trust  Deed. 

Also  sets  forth  the  power  of  sale  in  said  Trust  Deed  con- 
tained.68 

And  default  having  been  made  in  the  payment  of  said  note, 
and  Hiram  Jones,  the  legal  holder  thereof,  having  applied  to 
first  party,  as  such  Trustee,  to  cause  the  said  lands  herein  de- 

67  Bales  v.  Perry,  51  Mo.  449;  hibited  in  the  chain,  this,  of  course, 
Grover  v.   Hale,   107    111.   038.  would  be  unnecessary,  and  the  si,. 

68  The  power  of  sale  may  he  set  pic  recital  shown  in  the  text  will 
oul    here    as    directed,    hut     if     the  be  sufficient. 

trust    deed    has    already    been     ex- 
23 


354  ABSTRACTS    OF    TITLE. 

scribed  to  be  sold  for  the  purposes  mentioned  in,  and  in  ac- 
cordance with  the  provisions  of  said  Trust  Deed,69  first  party 
on  Dec.  5,  1881,  caused  a  due  notice  to  be  published  in  the 
Legal  Adviser,  a  newspaper  published  (printed)  in  the  City 
of  Chicago,  Cook  County,  Illinois,  that  said  lands  hereinafter 
described  would,  on  Jan.  5,  1882,  at  one  o'clock  P.  M.,  be 
sold  at  public  auction,  at  the  North  door  of  the  Court  House,10 
in  the  City  of  Chicago,  Ills.,  to  the  highest  bidder  for  cash, 
by  virtue  of  the  power  and  authority  in  him  vested  by  said 
Trust  Deed;  which  said  notice  was  (printed)  published  for 
thirty  days  in  said  paper,  commencing  on  Dec.  5,  1881,  and 
ending  on  Jan.  If.,  1882,  the  date  of  the  first  paper  containing 
the  same,  being  Dec.  5,  1881,  and  of  the  last  of  Jan.  If.,  1882. 

And  said  lands  having  been,  by  said  first  party,  on  Jan. 
5,  1882,  at  one  o'clock  P.  M.,  in  the  manner  prescribed  in  and 
by  said  Trust  Deed,  and  at  the  place  last  aforesaid,  in  pursu- 
ance of  said  notice,  offered  for  sale  at  public  auction,  to  the 
highest  bidder  for  cash,  and  second  party  having  been  the 
highest  bidder  therefor,  and  having  bid  for  the  tract  herein- 
after named,  $1,050,  he  was  duly  declared  the  purchaser 
thereof. 

Now,  therefore,  in  consideration  of  the  sum  so  bid,  grants, 
bargains,  sells,  aliens,  remises,  releases  and  confirms  the  follow- 
ing described  land  in  Chicago,  Cook  County,  Illinois,  to  wit: 
[Here  set  out  the  description  of  the  property  conveyed.] 

Together,  with  all  and  singular,  the  tenements,  heredita- 
ments,  and   appurtenances   thereunto   belonging,   as   the   same 

69  This    is    an    important    recital  as  made  in  violation  of  its  terms : 

and     should     always     be     set     out.  Equitable  Trust  Co.   v.   Fisher,   106 

Where     a     trust     deed     gives     the  111.  189. 

trustee  the  power  to  advertise  and  70  A  power  to  sell  "  at  the  north 

sell  the  mortgaged  premises  on  de-  door   of   the  court   house,"   may   be 

fault  of  payment,  when  so  requested  well   executed,    if   the   building   has 

by  the  holder   of  the   indebtedness,  meantime    been    destroyed    by    fire, 

and   the   trustee,   without   being   so  by  a  sale  at  the  ruins  of  the  north 

requested,    advertises    the    property  door.     The   meaning   of   the   phrase 

for    sale,    his     act    will     be    unau-  consists    in    identifying   a    place    of 

thorizcd   under  the  power,   and  the  sale,    not    in    the    identity    of     the 

sale  may  be  avoided  and   set  aside  door:   Waller  v.  Arnold,  71  111.  350. 


OFFICIAL    CONVEYANCES.  355 

are  described  and  conveyed  in  and  by  the  said  Trust  Deed; 
and  also,  all  the  estate,  right,  title,  interest,  property,  claim, 
and  demand  whatsoever,  both  in  law  and  equity,  of  the  said 
John  Peterson  and  wife,  as  well  as  of  the  said  first  party,  of, 
in,  and  to  the  above  described  premises,  with  the  appurte- 
nances, as  fully  to  all  intents  and  purposes,  as  first  party  hath 
power  and  authority  to  grant,  sell,  and  convey  the  same  by 
virtue  of  the  said  Trust  Deed. 
Ackgt.,  dated  Jan.  5,  1882. 

Should  no  trust  deed  be  shown  in  the  examination,  append 
the  power  of  sale  under  which  the  trustee's  deed  is  given,  as 
follows : 

Note. — The  Trust  Deed  from  John  Peterson  and  wife  to 
Pliny  B.  Smith,  dated  May  1,  1880,  and  recorded  May  2,  1880, 
as  Doc.  252,  in  booh  lf.10  of  Records,  page  512,  provides  in 
trust,  that  in  case  of  default  in  the  payment  of  said  note,  or 
any  part  thereof,  according  to  the  tenor  and  effect  of  said  note, 
then,  on  application  of  the  legal  holder  of  said  note,  to  sell 
and  dispose  of  the  said  premises,  and  all  the  right,  title,  bene- 
fit and  equity  of  redemption  of  said  first  party,  their  heirs 
and  assigns  therein,  at  public  auction,  at  the  North  door  of 
the  Court  House,  in  Chicago,  Illinois,  or  on  said  premises,  as 
may  be  specified  in  the  notice  of  such  sale,  for  the  highest  and 
best  price  the  same  will  bring  in  cash,  at  least  thirty  days'  pub- 
lic notice  having  been  previously  given  of  the  time  and  place 
of  such  sale,  by  advertisement  in  ■one  of  the  daily  or  weekly 
newspapers  at  that  time  published  in  said  City  of  Chicago; 
and  to  make,  execute  arid  deliver  to  the  purchaser  or  purcii us- 
ers at  such  sale,  good  and  sufficient  deed  or  deeds  of  convey- 
ance for  the  premises  sold,  "  *  *  *  which  sale  or  sales 
so  made  shall  be  a  perpetual  bar,  both  in  law  and  in  equity, 
against  the  said  first  party,  their  heirs  and  assigns,  and  all 
other  persons  claiming  the  premises  aforesaid,  or  any  part 
thereof,  by,  from,  through,  or  under  said  first  party,  or  any  of 
them. 


356  ABSTRACTS    OF    TITLE. 

Second  party,  with  or  without  re-advertising,  is  hereby  au- 
thorized and  empowered  to  postpone  or  adjourn  said  sale  from 
time  to  lime  at  his  discretion,  and  also  to  sell  said  premises  en- 
tire, without  division  or  in  parcels,  as  he  may  think  best. 

In  case  of  a  breach  of  any  of  the  covenants  or  agreements 
herein,  by  first  party,  said  premises  shall  be  subject  to  sale  and 
conveyance,  on  request  of  the  legal  holder  of  said  note,  in  like 
manner  and  with  the  same  effect  as  if  the  said  indebtedness 
had  matured. 

First  party  covenants  and  agrees  that  in  case  of  a  sale  and 
conveyance,  as  aforesaid,  of  said  premises,  the  deed  and  deeds 
of  conveyance  made  in  pursuance  of  such  sale  shall  be  prima 
facie  evidence  of  the  due  compliance  with  and  performance 
of  the  terms,  conditions  and  requirements  of  this  deed  of  trust, 
by  second  party  or  his  successor  in  trust  aforesaid,  in  advertis- 
ing and  making  such  sale  and  conveyance,  to  the  extent  of  the 
recitals  contained  in  such  deed  or  deeds. 

Where  a  trustee's  deed,  made  upon  a  sale  under  a  valid  deed 
of  trust,  shows  that  such  sale  was  conducted  in  strict  conformity 
with  the  power  contained  in  the  trust  deed,  and  the  purchaser 
has  had  no  notice  of  any  irregularities  in  the  sale,  his  title 
will  be  protected,  as  respects  such  irregularities,  if  any  there 
were,  as  that  of  an  innocent  purchaser ;  71  but  the  payment  of 
the  debt  secured  by  a  deed  of  trust  defeats  the  power  of  sale, 
and  a  purchaser  at  such  sale  must  see  to  it  that  the  grantor  in 
the  trust  deed  is  in  default,  and  that  some  part  of  the  debt  is 
due  and  unpaid.72 

§  285.  Mortgagees'  Deeds.  Mortgagees'  deeds,  made  in 
pursuance  of  a  power  of  sale,  differ  in  no  important  particular 
from  conveyances  by  trustees,  the  mortgagee  being,  for  the 
purposes  of  the  conveyance,  an  executor  of  an  express  trust. 
He  is  held  to  the  same  strict  rules  that  regulate  the  conduct 
of  other  trustees,  and  can  not  exceed  the  express  powers  under 

TiHosmer    v.    Campbell,    98    111.  ™  Ventres  v.  Cobb,  105  111.  33. 

572;   Montague  V.  Dawes,   14  Allen 
(Mass.),  369. 


OFFICIAL    CONVEYANCES.  357 

which  he  acts.  A  mortgagee  may  sell  the  equity  of  redemp- 
tion of  the  mortgagor  and  such  interest  as  is  conveyed  to  him 
by  the  mortgage  under  which  he  sells,  but  he  can  not  sell 
the  equity  of  redemption  by  itself;  nor  can  he  sell  an  undi- 
vided portion  of  his  interest  in  the  land  included  in  the  mort- 
gage. A  proper  execution  of  the  power  of  sale  requires  him 
to  sell  all  he  is  entitled  to  under  it,73  and  for  the  same  reason 
he  has  no  right  to  sell  a  greater  interest  than  the  mortgage  gives 
him  or  authorizes  him  to  sell.  A  violation  of  these  rules  will 
render  the  sale  invalid.74 

The  recitals  of  a  mortgagee's  deed  are  material  to  its  valid- 
ity, as  tending  to  show  a  due  execution  of  the  power  and  com- 
pliance with  the  conditions  of  the  trust,75  and  should  be  shown 
in  the  abstract  in  the  same  manner  as  indicated  in  case  of 
trustees'  deeds.76  The  original  purchaser  at  a  sale  by  a  mort- 
gagee, under  a  power  of  sale  contained  in  the  mortgage,  is 
chargeable  with  notice  of  defects  and  irregularities  attending 
the  sale,  and  can  not  evade  their  effect,77  but  it  would  seem  that 
as  to  remote  purchasers,  the  sale  is  only  voidable  on  proof  of 
actual  knowledge  of  such  defects  acquired  before  the  consid- 
eration has  been  paid.78  It  has  been  held,  however,  that  a 
properly  executed  deed  reciting  strict  conformity,  the  pur- 
chaser having  no  actual  knowledge  or  notice  of  any  irregularity 
and  taking  such  deed  upon  the  strength  of  the  assurances  therein 
contained,  will  protect  the  title  of  such  purchaser.79 

§  236.     Executors  and  Administrators.     The  real  estate 

73  Fowle  v.  Merrill,  10  Allen,  constructive  notice  that  there  had 
350;  Torrey  v.  Cook,  11G  Mass.  been  a  valid  sale  under  the  power, 
103.  although    the   deed   may   be   defect- 

74  Donohue  V.  Chase,  130  Mass.  ively  executed  so  as  not  to  pass  the 
137.  legal    title:     Gibbons    V.    Hoag,    95 

75  Gibbons  V.  Hoag,  95  111.  45.  111.   572. 

v    76  Where    a    deed    for    land    sold  77  Hamilton    V.    Lubukee,    51    111. 

under  a  power  in  a  mortgage,  rocit-  415.     But  see  Hosmer  v.  Campbell, 

ing  correctly  all  the  facts  showing  98  111.  572. 

a  right  to  make  the  sale,  is  record-  78  Grover  V.  Hale,  107  111.  638. 

eil   in  apt  time,   the   record  thereof  70  Hosmer    V.    Campbell,    98    III. 

will    affect    all    persons    thereafter  572. 

claiming  under  the  mortgagee  with 


358  ABSTRACTS    OF    TITLE, 

of  a  deceased  person  is  frequently  conveyed  through  the  media 
of  what  are  known  as  "  personal  representatives,"  consisting  of 
executors,  or  persons  specifically  designated  for  that  purpose 
by  the  decedent,  and  administrators,  who  act  by  virtue  of  an 
appointment  under  the  law.80  An  executor  may  sell  and  con- 
vey lands  held  in  special  trust  without  the  intervention  of  a 
court,  but  not  such  lands  as  are  sold  in  due  course  of  adminis- 
tration to  pay  decedent's  debts,  while  an  administrator  can  do 
no  act  affecting  lands  without  the  special  order  of  a  court.  In 
case  of  sales  by  either  officer  no  title  passes  until  the  execution 
and  delivery  of  a  deed,81  and  without  such  title  as  the  deed 
conveys,  the  purchaser  can  not  maintain  or  defend  ejectment 
against  or  by  the  heir.82 

§  287.  Executors'  Deeds.  A  testamentary  executor 
stands  in  the  place  of  and  represents  his  testator.  He  de- 
rives his  power  primarily  from  the  will,  and  in  this  respect 
differs  somewhat  from  an  administrator,  whose  sole  power  is 
derived  from  the  law  and  the  directions  of  the  court.83  When 
acting  under  a  naked  testamentary  appointment,  his  powers 
are  co-extensive  with  those  of  an  administrator,  and  he  is  bound 
by  the  same  rules,  and  subject  to  the  same  restrictions.  But 
the  executor  may  also  be  a  trustee,84  and,  when  acting  as  such, 
the  scope  of  his  powers  is  measured  and  limited  by  the  will 
which  appoints  him.  The  distinction  therefore,  must  ever  be 
kept  in  view  of  the  powers  and  duties  of  an  executor,  as  such, 
and  those  which  may  devolve  upon  him  as  trustee,  and  not 
as  executor.s5  Under  his  testamentary  authority,  he  may  sell 
land,  and  otherwise  execute  the  trusts  and  exercise  the  powers 

so  "  Legal  "    or    "Personal   repre-  82  Doe    V.    Hardy,    52    Ala.    291; 

sentative "     in     the    commonly    ac-  Gridley  v.  Phillips,  5  Kan.  349. 

eepted    sense,    means    administrator  83  Walker    v.    Craig,    IS    111.    lfl. 

or    executor.     But    this    is    not    the  Van  Wickle  v.  Calvin,  23  La.  Ann. 

only  definition.  It  may  mean  heirs,  205;    Gilkey  v.  Hamilton,   22   Mich, 

next  of  kin,   or   descendants:    War-  2S3. 

neeke  V.  Lembea,  71  111.  91.  §4  Pitts  v.  Singleton,  44  Ala.  303. 

81  A     properly     conducted     sale,  85  Warfield    v.    Brand,     13    Bush 

after  confirmation  vests  the  equita-  (Ky.),  77;  White  v.  Clover,  59  III. 

ble  title  in  the  purchaser.  462. 


OFFICIAL    CONVEYANCES.  359 

enumerated  and  conferred  in  the  will,  subject  to  the  general 
regulations  of  the  statute,  and  free  from  the  control  or  inter- 
vention of  a  court.86  But  where  authority  is  not  expressly 
given,  or  where,  during  the  administration,  he  performs  the 
ordinary  offices  of  an  executor,  as  where  land  is  sold  to  pay  the 
debts  of  decedent,  no  express  power  being  given,  he  must  first 
obtain  authority  or  license  from  the  probate  court,  and  his  sale 
must  be  reported  to  and  confirmed  by  such  court,  before  a  deed 
can  lawfully  issue  to  the  purchaser. 

An  executor's  deed,  therefore,  will  be  governed  by  the  law 
relating  to  trustees  or  administrators,  according  as  he  may  con- 
vey in  the  one  or  the  other  capacity,  and  the  reader  is  referred 
to  the  remarks  on  those  classes  of  deeds  respectively.87  In 
either  case,  the  authority  of  the  deed  must  precede  it;  in  the 
one  case  the  will,  showing  the  power  of  sale  or  trust,  and  the 
manner,  if  stated,  in  which  the  power  must  be  exercised  or  the 
trust  executed,  and  in  the  other,  the  license,  report  of  sale  and 
confirmation,  while  a  synopsis  of  the  probate  of  the  will  must 
be  shown  in  both  instances.  As  in  all  other  cases  of  fiduciary 
conveyances,  the  deed  itself  must  show  substantial  compliance 
with  the  requirements  of  the  will  and  of  the  law,  and  be  in 
other  respects  regular. 

An  executor's  deed,  under  power,  should  always  expressly 
state  that  it  is  made  in  execution  of  such  power,  and  where 
the  executor  also  possesses  individual  interests  in  the  land  con- 
veyed and  his  deed  does  not  purport  to  be  in  pursuance  of  his 
delegated  authority  or  in  execution  of  the  power  with  which 
he  is  invested,  it  will  be  insufficient  to  pass  the  interest  of  the 
testator.88 

§  288.     Administrators'  Deeds.     An  administrator  is  re- 

86  Buckingham     v.     Wesson,     54  to    sell    lands:     Skinner    v.    Wood, 

Miss.   526;    Whitman   v.   Fisher,   74  76  N.  C.   100. 

111.   147 ;   Cronise  v.  Hardt,  47  Md.  87  See    "  Judicial    and    Execution 

43.3;  Jelks  v.  Barrett,  52  Miss.  315;  Sales,"   and   the   chapter   on   Testa- 

Hnghes   v.   Washington,   72    111.   84.  mentary  Conveyances. 

But    the    power    must    be    explicit;  88  Cohea  v.  Hemingway,  71  Miss. 

general  words  do  not  confer  power  22;    Davenport    v.    Young,    16    111. 

548. 


360 


ABSTRACTS    OF    TITLE, 


garded  as  an  executive  officer  of  the  court,  while  he  also  occu- 
pies the  relation  of  trustee  to  the  estate,  its  creditors  and  dis- 
tributees.89 Although  he  may  not  possess  as  much  power  as 
an  executor,  the  latter  deriving  his  authority  from  the  testator 
and  the  law,  and  the  administrator  from  the  law  only,90  he  yet 
possesses  the  necessary  power  to  sell  property,  negotiate  secur- 
ities, and  to  settle  and  pay  debts,91  but  always  under  the  order 
and  direction  of  the  court.  He  takes  neither  an  estate,  title, 
nor  interest  in  the  lands  of  his  intestate,92  but  a  mere  naked 
power  to  sell  for  specific  purposes.93  He  takes  the  land  as  he 
finds  it,94  and  having  no  interest  therein,  can  maintain  no  ac- 
tion to  perfect  the  title  or  relieve  it  of  any  burden,95  and  must 
sell  it  as  he  finds  it.96 

An  administrator's  deed  derives  its  primary  validity  from 
the  order  of  the  court  directing  the  sale  of  the  land  in  ques- 
tion, and  this  order,  together  with  a  synopsis  of  the  preliminary 
proceedings  which  induced  it,  and  the  report  of  sale  and  con- 
firmation, should  precede  the  deed  in  every  instance.97  The 
power  to  sell  is  a  personal  trust,  which  can  not  be  delegated,98 
and  the  sale  being  a  fiduciary  act  based  upon  statute,  must  show 
affirmatively  a  strict  compliance  with  the  law.99     In  addition 


89Wingate  v.  Pool,  25  111.  118; 
State  V.  Meagher,  44  Mo.  356. 
These  remarks  will  also  apply  to 
some  phases  of  the  office  of  execu- 
tor.    See   foregoing   section. 

90  Gilkey  V.  Hamilton,  22  Mich. 
283. 

91  Walker  V.  Craig,  18  111.  116. 
Real  estate  cannot  be  sold  by  an 
administrator  unless  the  personal 
estate  is  insufficient  to  pay  the  lia- 
bilities; and,  ordinarily,  only  so 
much  should  be  sold  as  is  neces- 
sary for  that  purpose:  Newcomer 
v.  Wallace,  30  Ind.  216;  Foley  V. 
McDonald,  46  Miss.  238. 

92  Ryp.n  V.  Duncan,  88  111.  144; 
Stuart  V.  Allen,   16  Cal.  473. 

93  Smith     V.     McConnel,     17     111. 


135;    Floyd    v.    Herring,    64    N.    C. 
409. 

94  Gridley  v.  Watson,  53  111. 
186. 

95  LeMoyne  v.  Quimby,  70  111. 
399;    Ryan  V.  Duncan,   88   111.    146. 

96  Martin  v.  Beasley,  49  Ind.  280. 

97  See  Probate  Proceedings,  infra. 

98  Chambers  V.  Jones,  72  111.  275; 
Gridley  V.  Philips,  5  Kan.  349. 

99  Fell  v.  Young,  63  111.  106; 
Lockwood  v.  Sturdevant,  6  Conn. 
3S6;  Corwin  v.  Merritt,  3  Barb. 
341.  An  administrator's  deed  for 
land  is  not  admissible  as  evidence 
without  proof  that  the  maker  was 
administrator:  Ury  v.  Houston, 
06  Tex.  260. 


OFFICIAL   CONVEYANCES.  361 

to  the  report  of  sale,  a  substantial  account  of  same  is  also  incor- 
porated into  the  deed,  and  this,  together  with  all  other  ma- 
terial recitals  tending  to  show  a  full  compliance  with  the  decre- 
tal order  and  statutory  requirements  should  be  stated  with 
reasonable  detail  in  the  abstract.  A  form  is  here  appended  for 
further  illustration : 


Nathaniel  M.  Jones,  as  ad- 
ministrator of.  the  estate 
of  John  B.  Thompson,  de- 
ceased, late  of  Cook 
County,  Ills., 
to 
James  McHenry 


Administrator's  Deed. 

Dated  July  15,  1882. 

Ee corded  Aug.  J/.,  1882. 

Booh  119,  Bage  £10. 

Sets   forth,   that   the   Pro- 
hate  Court,  of  Cook  County, 
Illinois,    at    a    regular    term 
Doc.  125416.  thereof,  on  May  10,  1882,  in 

a  certain  cause,  brought  un- 
der the  statute,  wherein  said  Nathaniel  M.  Jones,  as  Admin- 
istrator of  the  estate  of  said  John  B.  Thompson,  deceased,  was 
plaintiff,  and  George  B.  Thompson  and  Mary  E.  Thompson, 
were  defendants,  did,  hy  order  duly  entered,  empower  and 
direct  said  Nathaniel  M.  Jones,  as  such  Administrator,  to  sell 
at  public  vendue  the  real  estate  of  said  John  B.  Thompson,  de- 
ceased, hereinafter  described,  for  the  purpose  of  paying  the 
just  claims  against  his  estate. 

That  in  pursuance  of  said  decretal  order,  said  first  party, 
as  such  administrator,  having  given  due  public  notice  of  the 
intended  sale  hy  causing  a  notice  of  the  terms,  time  and  place 
of  such  sale,  together  with  a  description  of  the  real  estate  to  he 
sold,  to  he  previously  posted  for  four  weeks,  at  four  of  the 
most  public  places  in  the  county  where  such  real  estate  was 
sold,  and  also,  to  be  published  for  four  successive  weeks  prior 
to  said  sale,  in  the  Chicago  Legal  News,  a  newspaper  published 
in  said  Cook  County,  the  county  where  such  real  estate  was 
sold,  agreeably  to  the  order  and  directions  of  said  Probate 
Court,  and  in  accordance  with  the  statute  in  such  cases  made 
and  provided,  did,  on  June  15,  1882,  pursuant  to  the  order 
and  notice  aforesaid,  sell  at  public  vendue  the  real  estate  of 


362  ABSTRACTS    OF    TITLE. 

said  John  B.  Thompson,  deceased,  in  said  order  described,  to 
James  McIIenry,  he  being  the  highest  bidder  therefor. 

That  first  party  made  and  filed  in  tlie  office  of  the  clerk  of 
said  Probate  Court  a  complete  report  of  his  proceedings* and 
sale  under  said  order,  and  said  Probate  Court  having  care- 
fully examined  the  same  on  July  10,  18S2,  finding  the  same 
correct,  did  approve  and  confirm  the  same,  and  ordered  said 
Nathaniel  M.  Jones,  as  such  administrator,  to  execute,  acknowl- 
edge and  deliver  a  deed  of  said  real  estate  to  second  party,  on 
his  complying  with  the  terms  of  said  sale,1  and  that  second 
party  has  hi  all  things  complied  with  the  terms  of  said  sale  on 
his  part  to  be  performed. 

Now,  therefore,  first  party,  in  consideration  of  the  premises 
and  $100.00,  grants,  bargains  and  sells  land  in  Cook  County, 
III.,  to  wit:  [Here  follows  the  description  of  the  land  accord- 
ing to  the  deed.] 

Together  with  all  and  singular  the  hereditaments  and  ap- 
purtenances thereunder  belonging,  and  all  the  estate,  rigid,  title, 
interest,  claim,  and  demand  whatsoever,  at  law  or  in  equity, 
which  said  John  R.  Thompson,  deceased,  had  at  the  time  of 
his  death,  in  and  to  said  premises. 

To  have  and  to  hold  the  same  unto  second  party,  his  heirs 
and  assigns  forever,  as  fully  and  effectually,  to  all  intents  and 
purposes  in  law,  as  second  party  might,  could  or  ought,  to  sell 
and  convey  the  same,  by  virtue  of  said  decretal  order. 

Certificate  of  acknowledgment,  dated  July  15,  1882. 

The  doctrine  of  caveat  emptor  applies  to  all  sales  by  the 
administrator,2  and  the  purchaser,  who  is  presumed  to  have 
made  all  necessary  inquiries,  takes  the  title  at  his  peril,3  and 
subject  to  all  liens,  except  those  for  the  payment  of  which 
the  land  is  sold.4     The  purchaser  has  no  right  to  the  land  until 

i  One   who   produces   an   adminis-  2  MeConnell  v.  Smith,  39  111.  279. 

trator's    deed    as    evidence    of    his  3  Bishop  v.  O'Connor,  69  111.  431, 

title,  must  show  that  its  execution  4  Henderson  v.  Whitinger,  56  Ind. 

was    authorized.     LaPlante   v.    Lee,  131. 
83  Ind.   155. 


OFFICIAL    CONVEYANCES.  3 Go 

the  sale  has  been  confirmed,5  bnt  where  the  sale  has  been  made 
under  a  proper  order  of  the  court,  and  reported  to  and  con- 
firmed by  such  court,,  it  conveys  title  even  though  the  proceed- 
ings be  irregular.6 

§  289.  Administrator  with  Will  Annexed.  An  admin- 
istrator with  the  will  annexed  occupies  much  the  same  position 
as  an  executor  and  may  exercise  many  of  the  executor's  pow- 
ers.7 He  acts  under  the  will  and,  as  a  rule,  any  power  given 
to  the  executor,  which  is  not  in  the  nature  of  a  personal  trust, 
that  is,  where  the  power  given  belongs  to  the  office  of  executor 
and  not  to  the  person,  may  be  exercised  by  an  administrator 
with  the  will  annexed.8  Where  the  will  creates  a  personal 
trust  which  the  executor  alone  could  execute  without  the  in- 
tervention of  a  court,  the  trust  will  not  pass  to  the  adminis- 
trator with  the  will  annexed,  and  sales  thereunder  of  real  prop- 
erty of  the  testator  by  the  administrator  will  be  without  author- 
ity and  void.9  Where  the  will  gives  to  an  executor  therein 
named  powers  and  duties  to  be  performed  which  do  not  ordi- 
narily come  within  the  scope  of  an  executor's  functions,10  or 
where  land  is  devised  to  him  to  be  sold,11  an  administrator  with 
the  will  annexed  has  no  power,  without  the  aid  of  a  court,  to 
sell  the  lands  so  devised  or  directed  to  be  sold,  or  to  execute  the 
special  powers  given  to  the  executor.12 

5  Mason  v.  Osgood,  64  N.  C.  467;  completion  of  administration;  in 
Rawlings  v.  Bailey,  15  111.  178;  this  latter  case  the  administrator  is 
Ury  v.  Houston,  36  Tex.  2G0.  also  administrator  de  bonis  non. 

6  Thorn  v.    Ingram,   25   Ark.    52 ;  8  Anderson  ?'.  McGowan,  45  Ala. 
Myer    v.    McDougal,     47     111.     278.  462 ;  Prescott  v.  Morse,  64  Me.  422 ; 
Compare    Chase    v.    Ross,    36    Wis.  Belcher  v.  Branch,  11  R.  I.  226. 
267.  9  Anderson  v.  McGowan,   45  Ala. 

7  An  administrator  cum  testa-  280 ;  Dunning  V.  Ocean  Nat.  Bank, 
menlo  annexe-  is  appointed  on  the  61  N.  Y.  497;  Ross  v.  Barclay,  18 
following  occasions:      1.     Where  no  Pa.  St.  179. 

executor   is   appointed   by   the   will.  i°  Ingle  V.  Jones,  9  Wall.  486. 

2.  Where   an   executor   is   appointed  1 1  Nicoll    V.    Scott,    99    111.    529 ; 

but    dies     before    the    testator".     3.  Dunning    v.    Ocean    Nat.    Bank,    (il 

Where    from   any   cause   the   execu-  N.  Y.  497 ;  Gilchrisi  r.  Rea,  9  Paige, 

tor    becomes    incompetent,    disquali-  66, 

fied     or     renounces     the     office.     4.  i  ^  Such  trusts  frequently  devolve 

Where  the  executor  dies  before  the  upon  a  trustee  whom  the  court  may 


36  i  ABSTRACTS   OF   TITLE, 

§  290.  Guardians'  Deeds.  Guardians  13  and  conserva- 
tors J  4  frequently  make  conveyances  of  the  real  estate  of  their 
wards,  either  to  pay  debts,  or  for  the  support  and  education 
of  the  ward,  or  for  the  purpose  of  investing  the  proceeds;  and 
such  conveyances,  if  attended  by  all  the  statutory  requisites, 
are  effectual  to  convey  all  the  title  which  the  ward  may  have 
possessed  at  the  time  of  the  sale.15  Sales  of  this  kind  are  made 
under  the  direction  of  the  probate  court  upon  petition  by  the 
guardian  stating  the  necessary  jurisdictional  facts,16  and  after 
notice  of  such  application,  in  the  manner  provided  by  law.17 
Such  sales  must  be  further  reported  to  and  confirmed  by  the 
court  granting  the  license,18  but  the  title  of  the  ward  will  not 
be  divested  until  a  deed  has  been  ordered  and  actually  exe- 
cuted.1 9 

The  deed  should  therefore  be  preceded  in  the  abstract  by. 
brief  recitals  of  the  antecedent  steps  or  references  to  all  juris- 
dictional facts.  These  would  consist  of  an  abstract  of  the  letter 
of  guardianship,  but  not  necessarily  of  the  preliminary  matters 
of  inducement,  as  a  letter  of  guardianship  is  in  the  nature  of 
a  certificate  or  commission,  and,  in  the  absence  of  any  statu* 

appoint   for   that   purpose:    Farwell  necessity,   and,   it   seems  that  whh- 

V.  Jacobs,  4  Mass.   634.  out  such  a   petition   the  court   gets 

13  The  common  law  recognized  no  jurisdiction  to  grant  a  license 
four  kinds  of  guardians,  to  wit:  to  sell;  Ryder  V  Flanders,  30  Mich. 
in   chivalry,    by   nature,    in    socage,  336. 

and  by  nurture.  The  distinctions  it  The  notice  is  jurisdictional, 
do  not.  and  never  have  existed  in  and  a  sale  without  giving  the  stat- 
the  United  States.  The  statutory  utory  notice  has  been  held  absolute- 
guardianship  is  the  only  kind  ly  void:  Rankin  V  Miller,  43  Iowa, 
which  figures  in  land  titles.  11;    Kennedy    v    Gaines,    51    Miss; 

14  The  estate,  and  frequently  the  625.  If,  however,  the  notice  is 
person  as  well,  of  persons  non  defective  merely,  the  jurisdiction 
compos  mentis,  is  often  confided  is  saved:  Lyon  V  Vannatta,  35 
to  the  care  of  a  statutory  guardian  Iowa,   521. 

generally    called    a    conservator    or  18  Confirmation     is     essential     to 

committee.  the  validity  of  the   sale.     People  V. 

15  Wisenor  v.  Lindsay,  33  La.  An.  Circuit  Judge.  19  Mich.  296;  White 
1211;  Mulford  v  Beveridge,  78  111.  v.  Clawson,  79  Ind.  188;  Chapin  r. 
445;     Fitzgibbon    v    Lake,    29     111.  Curtenius,  15  111.  427. 

165.  19  Doe  v.  Jackson,  51  Ala.  514. 

16  The   petition    is   of   paramount 


OFFICIAL    CONVEYANCES.  365 

tory  provision  requiring  it,  it  is  not  essential  to  its  validity  as 
evidence  of  the  appointment  that  it  should  recite  the  mode  and 
particulars  of  emanation,  while  all  reasonable  presumptions 
must  be  indulged  in  favor  of  its  having  been  regularly  issued 
and  after  lawful  proceedings ;  20  a  brief  synopsis  of  the  petition 
and  notice,  or  at  least  references  to  those  instruments;  a  syn- 
opsis of  the  decree  or  license  of  sale ;  and  reference  to  the  guard- 
ian's report  of  sale,  and  order  of  confirmation. 

§  291.  Trustees  Can  Not  Become  Purchasers.  It  is  a 
settled  principle  of  equity,  that  no  person  who  is  placed  in  a 
situation  of  trust  or  confidence  with  respect  to  the  subject 
of  the  sale  can  be  a  purchaser  of  the  property  on  his  own  ac- 
count. The  principle  is  not  confined  to  a  particular  class  of  ■ 
persons,  such  as  guardians,  trustees,  etc.,  but  is  a  rule  of  uni- 
versal application  to  all  persons  coming  within  its  principle, 
which  is,  that  no  party  can  be  admitted  to  purchase  an  interest, 
where  he  has  a  duty  to  perforin  that  is  inconsistent  with  the 
character  of  purchaser.  The  reason  of  the  rule  is,  not  because 
they  might  not,  in  many  instances,  make  fair  and  honest  dis- 
position of  it  to  themselves,  but  because  the  probability  is  so 
great  that  they  would  frequently  do  otherwise,  without  danger 
of  detection,  that  the  law  considers  it  better  policy  to  prohibit 
such  purchases  entirely  than  to  assume  them  to  be  valid  except 
where  they  can  be  proved  to  be  fraudulent. 

"  The  rule  forbidding  conflict  between  interest  and  duty  is 
no  respecter  of  persons.  It  imputes  constructive  fraud,  because 
the  temptation  to  actual  fraud  and  the  facility  of  concealing  it 
are  so  great.  And  it  imputes  it  to  all  alike,  who  come  within 
its  scope,  however  much  or  however  little  open  to  suspicion  of 
actual  fraud."  21 

The  principles  which  prohibit  the  trustee  from  becoming  a 

20  Burrows  V.  Bailey,  34  Mich.  64.  21  Ryan,  C.  J.,  in  Cook  t'.  Berlin 

The   proceedings    by   a   guardian   to  Mill  Co.,  43  Wis.,  433;  Story's  Eq., 

sell  his  ward's  lands  are  statutory,  §    310;    Crumley    v.   Webb,   44  Mo. 

and   a   material    deviation    from   the  444;   Blauvelt  v.  Aekermann,  20  N. 

requirements   of   the    statute    is,    in  J.  Eq.  141;  R.  R.  Co.  v.   R.  R.  Co., 

iralj    jurisdictional.  19    Gratt.     (Va.)     592;    Boerum    v. 


366  ABSTKACTS    OF    TITLE. 

purchaser  extends  to  all  sales  of  the  trust  property  whether 
made  by  the  trustee  himself,  under  his  powers  as  trustee,  or 
under  an  adverse  proceeding.  As  a  general  trustee  of  the  sub- 
ject-matter, it  is  his  duty  to  make  it  bring  as  much  as  possible 
at  any  sale  that  may  take  place,  and  therefore  he  cannot  put 
himself  in  a  situation  where  it  becomes  his  interest  that  the 
property  should  bring  the  least  sum.22 

§  292.  Continued  —  Qualifications  of  the  Rule.  The 
foregoing,  though  stating  the  generally  received  doctrine,  is  yet 
subject  to  qualification.  While  the  rules  as  stated  still  apply 
in  all  their  pristine  vigor  to  a  large  class  of  fiduciary  relations, 
to  certain  others  their  effect  has  been  greatly  modified*  Thus, 
a  purchase  of  land  by  an  executor,  at  his  own  sale,  directly  or 
indirectly,  is  not  ordinarily  void,  but  only  voidable  at  the  option 
of  the  heirs  or  beneficiaries  seasonably  expressed.23  A  clear 
and  unequivocal  affirmance  of  the  sale,  which  must  be  bona 
fide,  may  conclude  the  beneficiary,  if  under  no  disability  and  in 
full  knowledge  of  the  facts,  and  the  acceptance  of  proceeds  by 
the  beneficiary  would,  in  general,  amount  to  an  affirmance.24 

All  such  sales,  however,  are  viewed  by  the  courts  with  a 
jealous  eye  and  set  aside  for  slight  cause,  and  titles  derived 
through  or  under  them  are  questionable  at  best.  If  re-enforced 
by  a  quitclaim  or  confirmation  by  the  heirs  or  beneficiaries,  they 
become  less  obnoxious,25  yet  even  then  they  are  far  from  per- 
fect, as  the  unsatisfied  rights  of  creditors  may  raise  equities 
sufficient  to  vacate  and  annual  the  deed. 

Scheneck,  41  N.  Y.   182;  Roberts  V.  456;    Dodge    v.    Stevens,    94    N.    Y. 

Roberts,  65  N.  C.  27;   McGowan  V.  209. 

McGowan,  48  Miss.  553;  Goodwin  r.  24  Boerum   v.   Sehenck,   41    N.   Y. 

Goodwin,   48    Ind.    584;    Sheldon   v.  182;     Brantly    v.    Cheeley.    42    Ga. 

Rice,  30  Mich.  296.  209;   Scott  v.  Mann,  33  Tex.  721. 

22  Martin  v.  Wyncoop,  12  Ind.  25  Where  one  receiving  title  from 
266.  a  trustee  is  chargeable  with  notice 

23  Frazer  v.  Lee,  42  Ala.  25;  of  the  disability  of  his  grantor,  it  is 
Smith  v.  Cranberry,  39  Ga.  381;  essential,  in  most  cases,  that  some 
Williams  v.  Rhodes,  81  111.  571;  affirmation  of  the  sale  be  obtained 
Froneberger    v.    Lewis,     70    N.     C.  from  the  beneficiary. 


294. 

Voluntary    assignments. 

303. 

29.3. 

Validity  of  assignments. 

304. 

296. 

Formal    requisites. 

297. 

Title  of  assignee. 

305. 

298. 

Construction  and  effect. 

306. 

299. 

Conflict    of    laws  —  Foreign 

307. 

as- ignments. 

308. 

300. 

Insolvency. 

309. 

301. 

Bankruptcy, 

CHAPTER  XVIII. 

ASSIGNMENTS,     INSOLVENCY     AND     BANKRUPTCY. 

§  293.     Assignments   generally.  §  302.     Jurisdiction  and  practice. 

Classification  —  Procedure. 
Nature  and  effect  of  bank- 
ruptcy. 
Procedure. 

Bankruptcy  proceedings. 
The  assignment. 
The  assignee's  deed. 
Discharge  in  bankruptcy. 

§  293.  Assignments  Generally.  An  assignment,  as  de- 
fined by  Burrill,1  "  is  a  transfer  or  setting  over  of  property,  or 
of  some  right  or  interest  therein,  from  one  person  to  another; 
the  term  denoting  not  only  the  act  of  transfer,  but  also  the  in- 
strument by  which  it  is  effected."  When  applied  to  real  es- 
tate it  indicates  a  transfer  of  the  entire  interest  of  the  assignor 
in  the  transferred  property,  but  in  popular  use  is  restricted  to 
the  conveyance  of  an  estate  for  life  or  years.  The  term  is  also 
"used  to  distinguish  a  peculiar  class  of  conveyances  resorted  to 
by  persons  who  find  themselves  in  embarrassed  circumstances, 
or  who  are  unable  to  satisfy  the  full  demands  of  their  creditors. 
In  this  sense  assignments  are  classed  as  voluntary,  or  such  as 
are  made  by  the  free  act  and  deed  of  the  assignor ;  and  invol- 
untary or  statutory,  or  such  as  are  made  under  compulsion  of 
law  and  in  the  furtherance  of  statutes  of  bankruptcy  or  insol- 
vency. In  all  cases \ they  imply  a  trust  and  the  intervention  of 
a  trustee,2  and  conveyances  made  directly  to  the  beneficiaries, 
1  hough  for  the  same  purpose,  are  not  technically  assignments,3 

l  Burrill   on   Assignments.  3  Beach    v.    Beston,    47    111.    521; 

2  Cowles  v.  Rickett.  1  Iowa,  382;  Keen  V.  Preston,  24  Ind.  395;  John- 

Dickson  v.  Rawson,  5  Ohio  St.  218;  son  V.  McGraw,  11  Iowa,  151;  Grif- 

Peck  v.  Merrill,  2fl  Vt.  6S6.  fin  v.  Roger,  38  Pa.  382. 

36? 


3G8  ABSTRACTS    OF    TITLE. 

and  come  under  the  provisions  regulating  ordinary  deeds  of 
transfer  and  sale. 

§  294.  Voluntary  Assignments.  The  power  to  make  an 
assignment  for  the  benefit  of  creditors  is  not  derived  from  any 
statutory  enactment.  Every  debtor,  whether  solvent  or  insol- 
vent, possesses,  independent  of  statutory  grant,  the  right  to 
make  any  disposition  of  his  property  which  does  not  interfere 
with  the  rights  of  others ;  in  other  words,  to  make  any  honest 
disposition  of  his  property  that  he  pleases.  The  right  of  as- 
signment is  clearly  within  the  absolute  dominion  which  the  law 
empowers  every  man  to  exercise  over  his  own.  Statutory  pro- 
visions concerning  assignments  are  to  be  found  in  all  the  States, 
yet  such  statutes  do  not  confer  the  right,  but  merely  regulate 
its  exercise,  subjecting  it,  as  in  other  transfers  of  property,  to 
certain  restrictions  and  limitations  which  experience  has  dem- 
onstrated to  be  wise  and  just ;  but  it  is  still  the  assignor's  vol- 
untary act,  and  not  the  act  of  the  law. 

So,  also,  the  power  of  the  assignee  is  fixed  by  the  instrument 
of  assignment,  which  is  at  once  the  guide  and  measure  of  his 
duty.  Beyond  that,  or  outside  of  its  terms,  he  is  powerless  and 
without  authority.  He  distributes  the  proceeds  and  disposes  of 
the  estate  placed  in  his  care  according  to  the  dictation  and  un- 
der the  sole  guidance  of  the  assignment,  and  the  statutory 
provisions  merely  regulate  and  guard  his  exercise  of  an  au- 
thority derived  from  the  will  of  the  assignor.  In  all  things 
the  assignee  is  the  representative  of  the  assignor,  and  must  be 
governed  by  the  express  terms  of  his  trust.4 

As  a  general  rule,  in  the  absence  of  special  statutory  restric- 
tions, a  debtor  in  failing  circumstances,  acting  in  good  faith, 
may  lawfully  prefer  one  creditor,  even  to  the  total  exclusion 
of  all  the  others,5  and  may  also,  in  like  good  faith,  in  a  reason- 
able manner,  use  his  property  by  mortgage,  pledge  or  otherwise 
in  raising  money  to  pay  such  creditor.6 

4  In    re    Lewis,    81    N.    Y.    421;  178;   Thomas  v.  Goodwin,   12  Mass. 

Pillsbury  v.  Kingon,  31    N.  J.   Eq.  140. 

G19;   Bank   v.  Willis,   7  W.  Va.   31.  6  Cuendet    v.    Lahmer,     16    Kan. 

oTomlinson  v.   Matthews,  98  111.  527. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  369 

§  295.  Validity  of  Assignments.  In  all  cases  where 
conveyances  are  made  for  the  ostensible  purpose  of  securing  an 
equal  distribution  among  creditors,  of  the  property  of  the 
debtor,  the  validity  of  the  conveyance  depends  upon  the  inten- 
tion of  the  debtor.  If  the  intention  be  to  hinder  and  delay 
creditors  in  the  enforcement  of  their  demands  against  such 
debtor,  rather  than  to  secure  an  equitable  distribution  of  the 
property  among  creditors,  and  for  their  benefit,  the  convey- 
ance is  fraudulent  and  void.  It  is  not  the  effect  of  such  con- 
veyances that  determines  their  validity,  for  every  such  con- 
veyance in  effect  hinders  and  delays  creditors.  It  is  the  in- 
tention that  controls,  and  that  intention  can  not  be  better  de- 
termined than  from  the  language  of  the  deed  of  conveyance, 
although  it  may  be  established  by  extraneous  evidence.7 

A  full  narration  of  the  recitals  and  conditions  of  the  trust 
seems  desirable  in  all  cases  of  recent  conveyance,  as,  where  it 
appears  from  the  face  of  the  deed,  that  the  motive  for  making 
it  was  to  prevent  a  sacrifice  of  the  property;  or  if  there  be 
reserved  to  the  assignor  any  benefit  or  advantage  out  of  the 
property  conveyed,  the  intention  as  well  as  legal  effect  would 
be  to  hinder  and  delay  creditors  and  the  conveyance  would  be 
void.8  The  consideration  expressed  is  a  matter  of  minor  im- 
portance, the  true  consideration  being  the  agreement  of  the  as- 
signee to  perform  the  trusts  imposed  upon  him  by  the  assign- 
ment; and  that,  in  contemplation  of  law,  constitutes  a  full  and 
complete  consideration.9 

§  296.  Formal  Requisites.  Though  voluntary  assign- 
ments are  founded  on  common  right,  yet,  to  prevent  fraud  by 
the  setting  up  of  fictitious  transfers  claimed  to  have  been  made 
for  the  benefit  of  creditors,  they  must  be  attended  with  the  pre- 
scribed legal  formalities  of  the   State  where  made,   or  where 

7  German  Ins.  Bank  v.  Nunes,  14  (Ky.),  263;  Phelps  v.  Curtis,  80  111. 
Reporter,  200 ;  Mackie  v.  Cairns,  5  113;  Kayser  v.  Heavenrich,  5  Kan. 
Cow.  (N.  Y.)  547;  Henderson  V.  324;  Lockhart  v.  Wyatt,  10  Ala. 
Downing,  24  Miss.   106.  231;  Reed  v.  Pelletier,  28  Mo.   173. 

8  Gardner  v.  Com.  Nat.  Bank,  95  9  Thomas  v.  Clark.  65  Me.  296; 
111.  298;  Vernon  v.  Morton,  8  Dana  Gates  v.  Labeaume,  19  Mo.  17. 

24 


HTO  ABSTRACTS    OF    TITLE. 

the  property  to  be  affected  is  situated ;  and  unless  executed  in 
conformity  with  such  laws,  are  inoperative  and  void.  By  the 
instrument  the  debtor's  property  must  be  unconditionally  and 
without  restriction  transferred  to  the  assignee,  with  a  general 
authority  to  him  to  receive,  hold,  and  dispose  of  it  for  the  equal 
benefit  of  all  the  creditors,  or  in  the  order  of  preference,  if  any, 
provided  for.10 

The  assignment  should  be  executed  with  the  same  solemni- 
ties that  characterize  ordinary  deeds  for  the  conveyance  of 
land,  and  be  duly  acknowledged  before  an  authorized  officer.11 
Defects  of  this  nature  should  be  noted  by  the  examiner  with 
the  same  scrupulous  care  as  in  other  conveyances  between  in- 
dividuals. 

ISTo  particular  form  of  instrument  is  needed  to  constitute  an 
assignment,  and  any  valid  transfer,  intelligibly  indicating  the 
trusts,  will  suffice.12  It  is  usual  to  set  out  the  real  estate  con- 
veyed, either  in  the  body  of  the  deed  or  a  schedule  thereto  an- 
nexed, yet  such  is  its  force  as  a  conveyance,  that,  when  made 
only  in  general  terms,  it  will  transfer  all  the  property  which 
the  assignor  then  owns,  either  in  possession  or  expectancy,  and 
the  omission  to  specifically  describe  property  in  the  inventory 
would  not  prevent  the  title  thereto  from  passing  to  the  as- 
signee.13 If  the  instrument  mentions  specific  property,  with- 
out a  clause  of  general  conveyance,  or  even  makes  special  ex- 
ceptions, it  will  not,  for  that  reason,  be  void,  as  the  title  to 
such  withheld  property  may  still  be  pursued  by  creditors,  their 
remedies  being  neither  hindered  nor  delayed,14  and  so  long 
as  there  is  no  reservation  of  some  part  of,  or  some  right  or 
interest  in,  the  property  actually  conveyed,  the  assignment 
will  be  valid. 

lOMdntire  v.  Benson,  20  111.  500.  13  Roseboom   V.   Mosher,   2   Denio 

In  some   States  preferences  are  not  (X.  Y. ),  61. 

permitted.     Consult    local    statutes.  i*  Knight    v.    Waterman,    36    Pa. 

11  Britton  V.  Lorentz,  45  N.  Y.  St.  258;  Ingraham  v.  Grigg,  21 
51.  Miss.    22;     Bates    V.     Ableman,     13 

12  Norton  v.  Kearney,  10  Wis.  Wis.  664;  Carpenter  v.  Underwood, 
443.  19  N.  Y.  520. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  371 

The  statutory  requirements  relate  mainly  to  the  acceptance 
of  the  trust  by  the  assignee,  filing  of  bond,  notice  to  creditors, 
etc.,  and  in  these  respects  a  literal  compliance  is  usually  neces- 
sary. The  abstract  should  show  a  full  synopsis  of  the  proceed- 
ings; the  operative  parts  of  the  instrument  of  transfer,  includ- 
ing the  trusts;  and  such  portions  of  the  inventory  or  schedule 
as  cover  the  real  estate  in  question. 

§  297.  Title  of  Assignee.  It  is  a  usual  requirement  on 
the  part  of  the  assignee,  that  before  taking  possession  of  the 
assigned  estate,  he  shall,  within  a  stipulated  time  after  the  filing 
of  the  inventory,  execute  and  file,  in  the  proper  office,  a  bond 
conditioned  for  the  faithful  performance  of  his  duties ;  and  it 
has  been  held  that  the  absolute  title  to  the  property  assigned 
does  not  pass  until  this  bond  is  filed.  In  the  interval  between 
the  filing  of  the  assignment  and  the  filing  of  the  bond,  the  in- 
choate or  conditional  title  rests  under  the  protection  of  the 
court,  which  has  jurisdiction  over  the  property  but  not  over  the 
assignee;  and  a  failure  to  file  the  bond,  within  the  prescribed 
time,  is,  it  is  said,  equivalent  to  a  declination  of  trust  which 
terminates  all  right  in  the  property  which  the  assignee  may 
have  acquired  by  the  filing  of  the  assignment.15  Where,  how- 
ever, there  has  been  a  formal  acceptance  of  the  trust  the  trans- 
fer is  complete  and  irrevocable,  and  the  title  to  the  property 
vests  in  the  assignee  for  the  benefit  of  the  creditors.16 

An  assignee  is  not  regarded  as  a  purchaser  for  value,  and 
has  none  of  the  equities  of  such  purchaser.  Tie  stands  entirely 
on  his  naked  legal  title  and  this  he  can  acquire  only  by  an  ob- 
servance of  the  methods  prescribed  by  law.  The  filing  of  the 
bond  in  such  case,  unless  expressly  made  so  by  statute,  is  not 
a  condition  precedent  to  the  vesting  of  the  estate,  nor  will  the 
failure  to  give  the  statutory  security  within  the  time  limited 
invalidate  the  transfer  or  restore  the  title  of  the  assigned  prop- 
erty to  the  assignor.  In  the  event  of  the  failure  to  file  a  bond, 
as  required  by  law,   the   assignee,   though  invested    with   title, 

15 Kingman  r.  Barton,  24  Minn.  Forbes  v.  Scannell,  13  Cal.  242; 
2D.">.  Brown  v.  Chamberlain,  9   Fla.   nil; 

16  Ily.l.'  v.  Olds,  12  Ohio  St.  591;       Hall  V.  Dennison,  17   VI.  310. 


372  ABSTRACTS    OF    TITLE. 

has  no  power  or  authority  to  dispose  of  the  property  for  the 
purposes  of  the  trust,  which  would  then  he  a  dry  trust  merely 
to  take  possession  and  hold  until  he  should  become  qualified 
and  empowered  to  dispose  of  it ;  but  having  accepted,  he  can 
only  be  relieved  of  the  trust  and  divested  of  the  estate  by  the 
order  of  a  court  of  competent  jurisdiction.17 

§  298.  Construction  and  Effect.  An  assignment  for  the 
benefit  of  creditors,  conveying  property  to  trustees  with  power 
to  sell  and  to  apply  the  proceeds  in  payment  of  debts,  is  an  ab- 
solute conveyance,  by  which  both  the  legal  and  the  equitable 
estate  is  divested  out  of  the  grantor  and  vested  in  the  assignee, 
subject  to  the  uses  and  trusts  in  favor  of  the  creditors.18  "  An 
assignment,"  says  Burrill,19  "  is  more  than  a  security  for  the 
payment  of  debts ;  it  is  an  absolute  appropriation  of  the  prop- 
erty to  their  payment.  It  does  not  create  a  lien  in  favor  of 
creditors  upon  property  which,  in  equity,  is  still  regarded  as 
the  assignor's,  but  it  passes  both  the  legal  and  equitable  title 
to  the  property  absolutely  beyond  the  control  of  the  assignor. 
There  remains,  therefore,  no  equity  of  redemption  in  the  prop- 
erty, and  the  trust  which  results  to  the  assignor  in  the  unem- 
ployed balance  does  not  indicate  such  an  equity."  The  title  in 
the  hands  of  the  assignee  is  relieved  of  none  of  its  burdens,  but 
remains  subject  to  all  existing  liens  and  equities.20 

§  299.  Conflict  of  Laws  —  Foreign  Assignments. 
Deeds  of  assignment  are  governed  by  the  same  general  rules 
as  other  conveyances,  and  when  executed  in  one  State  but  in- 
cluding or  operating  upon  lands  in  another,  their  validity  and 
effect,  as  instruments  of  conveyance  of  such  lands,  must  be  de- 
termined by  the  laws  of  the  latter  State.21     They  have  no  cxtra- 

IV  Brennan  V.   Willson,   71   N.   Y.  577;    Hoffman    v.    Mackall,    5    Ohio 

502;   Thrasher  v.   Bently,   59   N.  Y.  St.     124;     Turner    v.    Watkins,    31 

649.  Ark.    437. 

18  Dwight  V.  Overton,  32  Tex.  20  Williams  v.  Winsor,  12  R.  I.  9. 
390;  Van  Keuren  v.  McLaughlin,  21  21  Story,  Conflict  of  Laws,  §  364; 
N.  J.  Eq.  163;  Briggs  v.  Davis,  21  Cutler  v.  Davenport,  1  Pick.  81; 
N.   Y.    574.  Loving    V.    Paire,     106    Iowa,    282; 

19  Burrill  on  Assignments,  12;  Gardner  v.  Com.  Nat.  Bank  of 
and  see,  Briggs  v.  Davis,  21   N.  Y.  Providence,   95   111.    298. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  3  i  3 

territorial  force,  jet,  on  principles  of  comity,  an  assignment 
valid  in  the  State  where  it  is  made,  and  where  the  assignor  re- 
sides, will  generally  be  permitted  to  operate  on  the  assets  of 
such  assignor  in  each  of  the  other  States.22 

§  300.  Insolvency.  A  special  procedure  is  provided  in 
most  of  the  States  for  the  distribution  of  the  estate  and  effects 
of  insolvent  debtors,  and  their  subsequent  discharge  from  the 
debts  thus  satisfied.  Such  proceedings  have  the  same  general 
effect,  within  the  jurisdiction  of  the  State,  as  proceedings  un- 
der the  national  bankrupt  law,  and  to  which  they  bear  a  strong 
analogy.  During  the  continuance  of  the  bankrupt  law  their 
operation  is  suspended,  and  owing  to  this  and  the  infrequency 
with  which  the  remedy  has  been  used,  but  few  instances  will 
occur  where  conveyances  have  been  made  under  same.  The 
examples  which  follow,  of  abstracts  of  proceedings  under  the 
national  bankrupt  laws,  will  serve  as  illustrations  of  the  method 
of  showing  State  insolvency  matters  whenever  they  may  occur. 
The  validity  of  titles  so  derived  is  a  matter  of  local  law  and 
construction. 

§  301.  Bankruptcy.  At  the  date  of  this  writing  a  na- 
tional bankrupt  law,  passed  in  1898,  is  in  force,  under  which 
many  transfers  have  been  made.  Xurnerous  transfers  under  the 
operation  of  past  laws  will  also  be  found  of  record.  Proceed- 
ings by  virtue  of  the  act  of  1841  require  but  slight  notice,  the 
rights  of  all  parties  thereunder  having  become  permanently 
established  by  the  effluxion  of  time.  Proceedings  and  convey- 
ances under  the  act  of  1867  should  be  shown  in  greater  detail, 
yet  even  here  only  a  brief  synopsis  seems  necessary.  The  oper- 
ation and  effect  of  the  law  of  1898  being  recent  and  continu- 
ous, more  attention  to  details  will  be  required. 

§  302.  Jurisdiction  and  Practice.  By  the  bankrupt  act 
of  1867,23  the  District  Courts  of  the  United  States  were  given 
original  and  exclusive  jurisdiction  and  power  over  all  "  acts, 
matters,  and  things  to  be  done  under  and  by  virtue  of  the  bank- 
ruptcy," and  were  authorized,  by  summary  proceedings,  to  ad- 

2  2Mowry  v.  Crocker,  6  Wis.  326.  23  14  Stat,  at  Large,  520. 


374  ABSTRACTS    OK    TITLE. 

minister  all  the  relief  which  a  court  of  equity  could  administer 
under  the  like  circumstances  upon  regular  proceedings.24  A 
revisory  jurisdiction  was  further  conferred  upon  the  federal 
circuit  courts,  but  all  initiate  proceedings  were  confined  to  the 
district  courts,  which,  when  sitting  as  courts  of  bankruptcy, 
were  regarded  as  separate  courts,  exercising  powers  and  a  ju- 
risdiction distinct  from  their  powers  as  district  courts  as  orig- 
inally constituted.25  Such  courts  were  permitted  to  exercise 
extraterritorial  jurisdiction  in  collecting  the  estate  and  adjust- 
ing the  claims  of  the  creditors  of  the  bankrupt,  but  in  all  mat- 
ters of  controversy  touching  the  rights  of  the  assignee  under 
the  assignment,  when  the  subjects  in  dispute  were  of  a  local 
nature,  the  rights  of  parties  could  only  be  determined  by  ac- 
tions in  local  courts.20  The  act  of  1898  also  gives  jurisdiction 
of  proceedings  in  bankruptcy  to  the  District  Court,  but  the 
procedure  differs  in  many  respects  from  that  observed  under 
former  laws. 

§  303.  Classification.  Bankruptcy  is  either  voluntary, 
when  precipitated  by  the  debtor's  own  act;  or  involuntary, 
when  produced  by  the  action  of  the  creditors,  the  effect  upon 
the  property  of  the  bankrupt  being  the  same  in  either  case.  In 
both  instances,  it  is  initiated  by  the  filing  of  a  petition,  and 
consummated  by  adjudication.  When,  after  adjudication  and 
before  any  assignment  has  been  made,  a  composition  is  effected 
and  the  bankrupt  discharged,  there  seems  no  good  reason  why 
the  abstract  should  be  encumbered  by  details  which  are  imma- 
terial to  the  title,  and  such  proceedings  may  be  safely  omitted.27 

24  Matter  of  Wallace,  Deady,  433 ;  the  title,  but  only  a  clog  upon  the 
Newman  V.  Fisher,  37  Md.  259;  examiner's  efforts  when  shown  in 
Voorhees  v.  Frisbie,  25  Mich.  476.  an  abstract.     Many  examiners  pre- 

25  Norris'  Case,  1  Abb.  (U.  S.  fer,  however,  to  briefly  allude  to  the 
514.  filing  of  the  petition  and  discharge, 

26  Whitridge  V.  Taylor,  66  N.  C.  as  the  bankrupt,  during  this  period, 
273.  has  no  power  of  disposition  over  his 

27  This  is  on  the  principle  that  effects;  the  adjudication  being  to 
the  matter  possesses  no  more  force  deprive  him  of  the  power,  while  the 
than    a    satisfied    judgment,    which  discharge  restores  same. 

is  neither  a  lien  nor  a  cloud  upon 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  375 

§  304.  Nature  and  Effect  of  Bankruptcy.  A  person 
adjudicated  a  bankrupt  is  deemed  a  bankrupt  from  the  day 
on  which  he  files  his  petition,  and,  from  the  moment  the  pe- 
tition is  filed,  so  far  as  his  property  is  concerned,  he  is  consid- 
ered as  civilly  dead.  During  the  interval  existing  between  the 
filing  of  the  petition  and  the  appointment  of  a  trustee,28  a 
condition  of  things  exists  not  unlike  that  before  the  appoint- 
ment of  an  administrator  in  the  case  of  a  person  dying  intestate, 
no  one  being  authorized  to  dispose  of  or  assign  his  assets.29 
Under  the  law  of  1867  a  voluntary  bankrupt  was  intrusted 
with  the  care  of  his  estate  before  an  assignee  was  chosen,  as  a 
sort  of  trustee,  and  in  involuntary  proceedings  a  warrant  issued 
to  the  U.  S.  marshal,  who,  as  the  messenger  of  the  court,  took 
possession  provisionally  of  all  the  bankrupt's  property.30  Un- 
der the  law  of  1898  a  receiver  may  be  appointed  to  hold  the 
bankrupt's  property  pending  an  adjudication,  or,  in  involun- 
tary cases,  a  warrant  may  issue  to  the  marshal  as  heretofore. 

§  305.  Procedure.  It  is  assumed  that  both  examiner  and 
counsel  are  familiar  with  the  general  procedure  of  the  bank- 
ruptcy court,  and  this  chapter  is  prepared  on  that  hypothesis. 
It  may  be  well,  however,  to  briefly  direct  the  attention  of  the 
reader  to  the  changes  of  method  which  are  noticeable  in  the 
present  law  when  compared  with  the  former  practice.  Under 
the  law  of  1867  the  proceedings  were  conducted  under  the  di- 
rection and  supervision  of  an  officer  called  "  Register  in  Bank- 
ruptcy," and  whenever  it  became  necessary  to  administer  the 
bankrupt's  estate  a  formal  transfer  of  his  property  was  made 
by  the  Eegister  to  an  officer  called  an  "  Assignee."  In  virtue 
of  the  authority  thus  conferred  the  assignee  took  possession  of 
the  property,  and,  if  necessary,  sold  it  to  satisfy  the  bank- 
rupt's debts. 

28  Under  the  law  of   1867  an  as-  30 /n  re  Muller,   Deady,   513;    In 

signment  was  made,  the  assignee  oc-  re  Harthill,   4   Ben.   448;    Williams 

cupying  much  the  same  position  as  V.    Merritt,    103    Mass.    184;    In    re 

a  trustee  under  the   present  law.  Carow,  41  How.  Pr.   (N~.  Y.)   112. 

20  Johnston  V.  Geisriter,  26  Ark. 
44. 


37G  ABSTEACTS    OF    TITLE. 

Under  the  law  of  1898,  after  an  adjudication  of  bankruptcy 
has  been  entered  by  the  court,  the  matter  is  sent  to  an  officer 
called  a  "  Referee,"  who  thereafter  conducts  the  proceedings. 
In  the  event  that  the  creditors  shall  so  desire  a  "  Trustee  "  is 
appointed  to  take  the  debtor's  property  and  convert  it  into 
money.  Upon  his  appointment  and  qualification  the  Trustee 
becomes  invested,  by  operation  of  law,  with  all  of  the  bank- 
rupt's titles  and  rights  of  ownership,  except  statutory  exemp- 
tions, as  they  existed  at  the  date  of  the  adjudication.  When- 
ever, in  the  course  of  the  proceeding,  the  lands  of  the  bank- 
rupt are  sold  the  title  thereto  is  conveyed  to  the  purchaser  by 
the  trustee. 

§  306.  Bankruptcy  Proceedings  —  How  Shown.  As 
in  chancery  proceedings,  only  a  brief  outline  of  the  procedure 
of  the  bankruptcy  court  can  well  be  shown  in  the  abstract, 
which  in  cases  of  this  nature  is  rather  an  index  than  a  tran- 
script. Sufficient,  however,  should  be  given  to  show  the  appar- 
ent regularity  of  the  proceedings,  and  the  degree  of  detail  may 
be  regulated  by  the  wishes  of  the  client.  After  confirmation, 
a  sale  by  the  assignee  or  trustee  stands  in  the  same  relative  po- 
sition, with  respect  to  irregularities,  etc.,  in  anterior  proceed- 
ings, as  other  sales  in  chancery,  and  such  anterior  proceedings 
require  no  greater  elaboration.  With  such  changes  as  may  be 
necessary  to  suit  the  exigencies  of  particular  cases,  the  follow- 
ing will  afford  a  sufficient  example.  This  proceeding,  it  will 
be  observed,  is  under  the  law  of  1867. 


In  the   matter   of   the   estate 

of  Andrew   Smith, 

Bankrupt. 


U.  S.  District  Court, 
Northern  District  of  Illinois. 
Case  No.  1,000. 
Petition  filed  Nov.  10,  1868.31 
Schedule  of  assets  and  lia- 
bilities   mentions,    [here    set 
out  so  much  of  the  real  estate  described  as  is  covered  by  the 

31  An  assignment  in  bankruptcy  assignee  becomes  vested  as  of  that 
relates  to  the  commencement  of  date.  International  Bank  V.  Sher- 
the  proceeding,  and  the  title  of  the       man,  101  U.  S.  403. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  377 

caption  of  the  abstract ;  or,  if  not  mentioned,  say :  does  not 
mention  property  in  question.']  Adjudication  entered  Nov.  16, 
1868.32    Robert  E.  Jenkins  appointed  assignee  Nov.  16,  1868. 

Petition  of  said  assignee,  filed  Dec.  1,  1868,  praying  leave 
to  sell  assets  of  said  estate  at  public  auction,  etc. 

Order  entered,  Dec.  2,  1868,  authorizing  said  assignee  to 
sell  assets  as  prayed  for  in  said  petition,  after  giving  three 
weeks'  public  notice  by  publication,  etc.,  and  ten  days'  notice  by 
mail  to  creditors. 

Assignee's  report  of  sale,  with  proof  of  publication  and 
notice  of  sale  attached,  filed  February  1,  1869,  showing  sale 
of  [here  set  out  the  description  of  property  sold  if  covered  by 
the  search;  or,  if  only  one  piece  is  named  in  schedule,  or,  if 
all  the  property  named  in  schedule  is  sold  to  one  person,  say: 
the  lands  described  in  schedule  of  assets  and  above  set  forth] 
to  Alexander  Hamilton  for  $10,000. 

Assignee's  report  of  sale  approved  and  sale  confirmed  Feb- 
ruary 10,  1869. 

The  subsequent  proceedings,  relative  to  the  discharge  of  the 
bankrupt  are  immaterial,  as  he  has  now  been  divested  of  all 
title  to  the  land  in  question ;  but  should  the  examiner  desire 
•to  add  a  symmetrical  close  to  his  synopsis  of  the  action  of  the 
bankruptcy  court,  he  may  add : 

Petition  for  discharge  filed  March  1,  1869. 
Register's  final  report  filed  March  10,  1869. 
Discharge  entered  and  issued  May  1,  1869. 

§  307.  The  Assignment.  The  synopsis  given  in  the  last 
section  is  taken  from  the  rolls  of  the  district  court,  and  shows 

32  In  case  there  should  have  been  They  would  consist  of  the  dates, 
a  composition  and  subsequent  dis-  severally,  of  the  entering  and  filing 
charge,  the  notes  of  same  may,  in  of  the  petition  for  composition 
the  examiner's  discretion,  be  en-  meeting;  the  Register's  report  of 
tered  immediately  following.  In-  composition,  and  decree  confirming 
asmuch  as  such  proceedings  shed  same;  the  Register's  report  of  corn- 
no  light  on  the  title  they  are  not  pliance  and  final  discharge, 
inserted   in   the    form    above   given. 


378  ABSTRACTS    OF    TITLE. 

the  general  course  of  the  proceedings  under  the  law  of  1867. 
The  formal  instrument,  however,  by  which  the  assignee  ac- 
quired the  legal  title,  was  an  assignment  by  the  Register,  which 
was  duly  recorded  as  a  title  deed  in  the  registry  of  deeds  of 
the  county  wherein  the  land  was  situate,  and  in  the  abstract 
it  may  be  shown  as  follows: 


Homer  N.  Hibbard,  one  of 
the  Registers  in  Bank- 
ruptcy of  the  District 
Court  of  the  U.  S.  for 
the  Northern  District 
of  Illinois, 
to 

liobert  E.  Jenkins,  as- 
signee of  Andrew 
Smith,  Bankrupt. 


Assignment. 

Dated  Nov.  16,  1868. 

Recorded  Nov.  17,  1868. 

Book  691,  page  625. 
Conveys  and  assigns  all  the 
'  estate,  real  and  personal,  of 
said  Andrew  Smith,  bankrupt, 
including  all  the  property,  of 
whatever  kind,  of  which  he  ivas 
possessed,  or  in  which  he  was  in- 


J  terested  or  entitled  to  have,  on 
Nov.  10,  1868,  with  all  his  deeds,  books  and  papers  relating 
thereto,  excepting  such  property  as  is  exempted  from  the  op- 
eration of  this  assignment  by  the  provisions  of  Sec.  50Jf.5,  of 
title  61,  Bankruptcy,  of  the  Revised  Statutes  of  the  United 
States.33 

In  trust,  for  the  uses  and  purposes,  with  the  powers,  and 
subject  to  the  conditions  and  limitations  set  forth  in  said  act. 

This  presents  substantially  the  contents  of  the  assignment, 
and  conveys  all  the  information  necessary  to  be  shown  in  the 


33  It  should  be  remembered  that 
only  the  property  actually  owned 
by  the  bankrupt  passes  by  this  as- 
signment, and  hence  where  such 
bankrupt  possesses  the  legal  title 
only,  but  no  beneficial  interest,  the 
title  does  not  vest  in  the  assignee 
and  can  not  be  conveyed  by  him 
(Rhodes  V.  Blackiston,  106  Mass. 
334)  ;  and  the  mere  fact  that  the  as- 
signee  inventories    certain    land    as 


belonging  to  the  estate  of  the  bank- 
rupt, and  sells  and  conveys  same 
under  order  of  court,  does  not  op- 
erate as  an  adjudication  that  the 
land  was  the  property  of  the  bank- 
rupt a«  the  time  of  the  filing  of  the 
petition,  but  only  that  whatever  of 
title  the  bankrupt  then  had  is  con- 
veyed to  the  purchaser:  Wilkins  V. 
Tourtellott,  28  Kan.   825. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPT'   V.  379 

abstract,  but  Bhould  the  examiner  so  desire  be  may  set  forth 
the  instrument  in  greater  detail. 

§  30S.  Assignee's  or  Trustee's  Deed.  In  order  to  pre- 
sent the  synopsis  of  bankruptcy  proceedings  in  a  connected 
manner,  and  as  it  should  appear  in  the  abstract,  it  is  deemed 
advisable  to  give  the  assignee's  deed  in  this  place  rather  than 
where  it  more  properly  belongs,  in  the  chapter  devoted  to  offi- 
cial conveyances.  These  deeds,  like  other  conveyances  by 
trustees,  are  usually  long  and  prolix,  and  considerable  dis- 
crimination must  be  exercised  in  preparing  the  abridgment,  in 
order  to  present  everything  that  can  shed  light  on  the  transac- 
tion and  yet  avoid  burdening  the  abstract  with  unnecessary 
particulars  or  useless  verbiage.  The  following  form,  prepared 
from  a  long  and  technical  deed,  will  serve  to  explain  the  mean- 
ins:  of  these  remarks  and  illustrate  the  methods  described: 


Assignee's   Deed.3i 
Robert  t.  Jenkins,  Assignee 


in  Bankruptcy  of  the  Es- 
tate and  Effects  of  An- 
drew Smith,  Bankrupt, 

to 
Alexander  Hamilton. 


Dated  ?eb.  10,  1869. 

Recorded  Feb.  12,  1S69. 

Book  100,  page  200. 

Sets  forth  that,  in  accord- 
ance with  the  provisions  of 
the  Revised  Statutes  of  the 
I  nited  States,  Title  "Bankruptcy,"  a  petition  was  filed  in  the 
District  Court  of  the  United  States  for  the  Northern  District 
of  Illinois,  on  Xov.  10,  1868,  by  said  Andrew  Smith,  and  on 
Nov.  16,  1868,  said  Andrew  Smith  was  duly  adjudged  and 
declared  bankrupt;  and  on  Xov.  16,  1S6S,  said  Robert  E.  Jen- 
kins was  duly  appointed  assignee  of  the  estate  and  effects  of 
said  bankrupt  by  H.  N.  Hibbard,  one  of  the  Registers  in  Bank- 
ruptcy of  said  Court,   which  said  appointment   was  thereafter 

34  This    is    an    abridgement    of    a  will   be   good,    if   in    other    respects 

deed  under  the  law  of  1S67.     Under  sufficient,  the  same  as  a  deed  made 

the  law  of  1841  a  deed  containing  a  by  the  bankrupt  before  the  adjudi- 

copy   of    the    decree    of   bankruptcy  cation;     Ryder    v.    Rush,     102    I1L 

and  of  the   appointment   of  the   as-  338. 
signee,  needs   no  other  recitals  and 


380  ABSTRACTS    OF    TITLE. 

duly  approved  and  confirmed  by  said  Court,  and  on  Nov.  16, 

1868,  said  Register  conveyed  and  assigned  to  said  Jenkins,  as 
such  assignee,  all  the  estate,  real  and  personal,  of  said  bank- 
rupt, including  all  the  property  of  whatsoever  hind,  of  which 
said  bankrupt  was  possessed,  or  in  which  he  was  interested,  or 
which  he  was  entitled  to  have  on  Nov.  10,  1869  (excepting  only 
such  property  as  is  excepted  by  the  501/-5th  section  of  said  Re- 
vised Statutes). 

That  said  bankrupt,  Andrew  Smith,  appears  to  have  been, 
on  said  last  mentioned  date,  possessed  of  or  entitled  to  an  in- 
terest in  real  estate  and  property  hereinafter  mentioned.  And 
said  assignee  having  frst  given  notice,  by  publication  once  a 
week,  for  three  -consecutive  weeks,  pursuant  thereto,  on  Feb.  1, 

1869,  offered  for  sale,  and  sold  said  real  estate  and  property 
at  public  auction,  and  at  said  sale,  second  party  was  the  high- 
est bidder,  and  became  the  purchaser  thereof  for  $10,000.00; 
which  sale  was,  on  Feb.  10,  1869,  approved  and  confirmed  by 
said  Court,  and  said  Court  did,  on  the  day  and  year  last 
named,  order  and  direct  said  assignee  to  execute  and  deliver 
to  said  second  party  a  deed  for  the  real  estate  so  sold,  convey- 
ing the  same  to  him,  in  accordance  with  the  terms  of  said  sale. 

Now,  therefore,  in  consideration  of  the  premises,  and  $10,- 
000.00,  remises,  releases,  sells,  conveys  and  quitclaims,  all  the 
rigid,  title,  interest,  estate,  claim  and  demand  of  said  bank- 
rupt, which  he  had  on  Nov.  10,  1868,  and  of  said  Robert  E. 
Jenkins,  as  assignee  aforesaid,  in  and  to  the  following  described 
real  estate,  to  wit:  [Here  set  out  the  description  of  the  prop- 
erty conveyed,  employing  the  language  of  the  deed],  with  all 
the  improvements,  rights,  privileges  and  appurtenances  thereto 
belonging,  but  subject  to  all  unpaid  taxes  and  tax  liens,  and 
to  all  liens  and  incumbrances,  unless  expressly  excepted,  re- 
leased or  discharged  by  the  orders  of  said  Court,  concerning 
said  sale,  and  subject  to  all  the  terms  and  conditions  of  said 
sale. 

Certificate  of  acknowledgment,  dated  Feb.  10,  1869. 


ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY. 


The  foregoing  will  serve  to  suggest  the  treatment  of  a  trus- 
tee's deed  under  the  law  of  1898,  and  the  manner  in  which  its 
recitals  should  be  shown. 

The  title  conveyed  by  the  assignee  or  trustee  is  no  better  than 
that  held  by  the  bankrupt,  and  the  purchaser  takes  it  charged 
with  all  the  equities  to  which  it  was  subject  in  his  hands,35  and 
burdened  with  all  liens,  by  mortgage  or  judgment,  which  ex- 
isted against  him  at  the  time  of  the  adjudication. 

§  309.  Discharge  in  Bankruptcy.  The  effect  of  an  ad- 
judication in  bankruptcy  being  to  deprive  the  person  adjudged 
a  bankrupt  of  his  power  to  take  or  convey  property  while  rest- 
ing under  such  sentence,  it  is  proper  that  his  restoration  to 
civil  rights  should  also  be  shown  whenever  the  abstract  dis- 
closes him  in  the  character  of  a  grantor  or  grantee  after  such 


35  Walker  v.  Miller,  11  Ala.  1067; 
Stow  V.  Yarwood,  20  111.  497;  Har- 
din V.  Osborne,  94  111.  571.  In  this 
ease,  the  court  held  that  an  assig- 
nee in  bankruptcy  does  not  take 
the  title  to  the  property  of  the 
bankrupt  as  an  innocent  purchaser 
without  notice,  free  from  latent 
equities,  etc.,  but  as  a  mere  volun- 
teer, standing  in  the  shoes  of  the 
bankrupt,  as  respects  the  title,  and 
having  no  greater  rights  in  that  re- 
gard than  the  bankrupt  himself 
could  assert.  The  bankrupt  had, 
prior  to  the  time  he  was  adjudged 
a  bankrupt,  conveyed  land,  but  trie 
deed  remained  unrecorded,  and  the 
court  held,  that  no  title  would  pass 
to  the  assignee  as  against  the  pur- 
chaser holding  under  the  prior  un- 
recorded deed.  "  Suppose,"  said 
Walker,  C.  J.,  "  the  debts  had  been 
paid  without  the  sale  of  the  land, 
does  any  one  suppose  the  bankrupt 
could  have  held  it  against  his  for- 
mer grantee,  whether  or  not  his 
grantee  had  recorded  his  deeds? 
Where  the  purchaser  had  paid  his 
money,    and    received    the    convey- 


ance, his  equities  are  surely  equal 
to  that  of  other  creditors.  His 
deed  operated  to  convey  to  him  the 
title,  and  the  creditors  have  ad- 
vanced nothing  to  procure  a  lien  on 
the  landj  and  the  appointment  only 
operated  as  a  transfer  of  whatever 
interest  the  bankrupt  held  for  the 
benefit  of  his  creditors."  But  the 
learned  judge  further  observes: 
"  If,  however,  in  such  a  case  the 
assignee  were  to  sell  and  convey 
the  land  to  an  innocent  purchaser 
without  notice,  and  he  were  to  place 
his  deed  on  record  before  that  of 
the  prior  purchaser,  a  different  case 
would  be  presented."  In  the  case 
of  Holbrook  V.  Dickenson,  56  111. 
497,  where  the  assignee  had  sold 
the  land  under  a  similar  state  of 
facts,  it  was  held  that  the  prior 
purchaser  could  not  set  up  or  show 
his  unrecorded  deed  to  defeat  the 
title  of  the  assignee's  grantee,  and 
this  is  the  generally  received  doc- 
trine resulting  from  the  plain  con- 
struction of  the  recording  acts. 
And  see  Bank  v.  Stone,  80  Ky.  109; 
VVilkins  v.  Tourtellott,  28  Ky.  285. 


3S2 


ABSTRACTS    OF    TITLE. 


adjudication.  This  may  be  accomplished  by  a  simple  note 
of  the  fact.  Where  a  composition  has  been  effected,  such  note 
would  be  given  in  connection  with  a  brief  reference  to  the 
petition  and  proceedings  in  the  bankruptcy  court.  Whore  the 
debtor's  property  has  passed  from  him  to  the  assignee,  or 
where  a  trustee  has  been  appointed,  and  the  subject  of  the  ex- 
amination consists  of  property  in  which  the  bankrupt  has  ac- 
quired an  interest  since  the  date  of  such  assignment  or  appoint- 
ment, the  fact  of  discharge  may  be  shown  as  an  independent 
circumstance,  its  legal  import  being  merely  to  show  the  removal 
of  disability ;  thus, 


In  the  matter  of  the 
bankruptcy 

of 
James  L.  Slier  man. 


In  the  U.  S.  District  Court, 
Northern  District  of  Illinois. 

Case  No.   3,529. 

Voluntary  Petition. 

Filed  December  19,  1877. 

Discharge  entered  and  issued 
to  said  Bankrupt,  February  28, 
1879. 


The  general  effect  of  a  discharge  in  bankruptcy  is  to  free 
the  bankrupt  from  all  liability  with  respect  to  debts  proved 
against  his  estate,  as  well  as  all  debts  founded  on  contracts 
made  by  him  which  might  have  been  so  proved. 


CHAPTER  XIX. 

AGREEMENTS  FOR  CONVEYANCE. 

§  310.     Land  contracts.  §  316.     Formal  parts. 

311.  Relation    of    parties    under  317.     Assignment  of  the  contract. 

land  contracts.  318.  Performance    —  Sufficiency 

312.  Effect  and  operation.  of  deed  and  title. 

313.  Nature  and  requisites.  319.  Forfeited  contracts. 

314.  As    affected     by     recording  320.  Bond  for  deed. 

acts.  321.     Agreement    for    conveyance 

315.  Construction    of    land    con-  by  will. 

tracts. 

§  310.  Land  Contracts.  Land  contracts,  or  agreements 
to  deed,  are  of  frequent  occurrence  on  the  records,  and  occasion- 
ally bonds  for  the  same  purpose  will  be  found,  though  these 
latter  are  now  practically  obsolete.  Should  the  contract  be 
executory  its  contents  should  be  set  forth  with  considerable 
minuteness,  particularly  such  parts  as  relate  to  the  parties,  the 
subject-matter,  and  the  conditions  of  conveyance.  If,  on  the 
contrary,  the  contract  has  been  consummated  by  deed,  a  passing 
allusion  to  it,  as  part  of  the  chain  of  title,  will  be  sufficient. 
Where  the  subsequent  deeds  do  not  show  a  substantial  com- 
pliance, a  full  synopsis  may  become  material,  although  the 
contract  has  been  executed,  and  the  examiner  should,  as  a  pre- 
cautionary measure,  first  satisfy  himself  on  this  point  before 
abstracting  the  instrument.  In  executed  contracts,  however, 
this  is  not  of  vital  importance,  for  acceptance  of  a  deed 
ordinarily  merges  any  provisions  of  the  contract  of  sale  which 
are  different  from  the  deed.1 

l  Davenport  V.   Whisler,  46  Iowa,  actual    contract    as    shown    by    the 

2S7 ;   Bull   r.  Willard,  9  Barb.  641;  agreement,   will   still   be  competent, 

Jones   V.  Wood.   16  Pa.  25.     This  is  where    through    fraud,    inadvertence 

the  accepted  doctrine,  yet  it  is  sub-  or    mistake,    a    different    deed    has 

feet     1o     large    qualification.      The  been    delivered;    Snell    v.    Insurance 

383 


384  ABSTRACTS    OF    TITLE. 

§  311.     Relation    of   Parties    Under   Land    Contracts. 

The  relation  subsisting  between  the  parties  to  an  ordinary  con- 
tract for  the  conveyance  of  land  upon  the  future  payment  of 
the  purchase  money,  is  analogous  to  that  of  equitable  mort- 
gagor and  mortgagee,  the  vendor  holding  the  legal  title  as 
security  for  the  unpaid  purchase  money,  which  security  is 
essentially  a  mortgage  interest.  The  vendee  has  an  equity  of 
redemption,  and  the  vendor  a  correlative  right  of  foreclosure 
upon  default  in  the  payments.2  In  this,  as  in  other  cases,  the 
mortgage  is  the  incident,  the  debt  the  principal,  and  the  vendor 
has  no  further  interest  except  to  the  extent  of  the  security  the 
mortgage  affords  for  his  debt.3 

§  312.  Effect  and  Operation  of  the  Contract.  The  ef- 
fect of  a  valid  contract  for  the  conveyance  of  land,  is  to  vest 
in  the  vendee  the  equitable  estate  in  the  land,  leaving  the  legal 
title  in  the  vendor  as  a  mere  lien  or  security  for  the  unpaid 
purchase  money.4  The  vendor,  in  such  case,  is  simply  a  trus- 
tee having  an  interest  in  the  proceeds  but  not  in  the  land,  and 
this  interest,  upon  his  decease,  would  pass  to  his  personal 
representatives  and  not  to  his  heirs.  The  heirs  would,  it  is 
true,  take  the  legal  title  by  descent,  but  only  as  it  was  vested 
in  the  ancestor,   which  was  as  a  mere  security  for  the  debt. 

Co.,   98   U.    S.   85,   and   cases   cited.  Sackett,    108   U.   S.    132.     It  would 

Where   there   has   been,    by   mutual  seem,  therefore,  that  in  case  of  dis- 

mistaKe,  a  failure  to  embody  in  the  crepancy  or    repugnancy  the  agree- 

deed   the   actual    agreement   of    the  ment    should     be    fully    abstracted 

parties   as    evidenced    by   the    prior  or  at   least   sufficient   thereof  given 

written  agreement,  and  the  meaning  to  show  the  repugnancy, 

of  the  prior  agreement  is  clear,  and  2  Church  v.  Smith,  29   Wis.  492 

nothing    has    occurred    between    the  Button    v.    Schroyer,    5    Wis.    598 

parties  after  it  was  signed  and  de-  King    v.    Ruckman,    21    N.    J.    Eq 

livered    to    vary    its    terms,    except  599;    Baldwin   V.    Pool,    74   111.   97 

the  mere  fact  of  the  delivery  of  the  Fitzhugh  v.  Maxwell,  34  Mich.  138 

deed,    and    the  "deed    not    effecting  Dew  v.  Dellinger,  75  N.  C.  300. 

what  both  parties    intended  by  the  3  Strickland    v.    Kirk,    51     Miss, 

actual     contract     which     they     had  795. 

made,  a  court  of  equity  will   inter-  4  Reed    v.    Lukens,    44    Pa.    200; 

fere  and  reform   the  deed   so  given  Cary  v.  Whitney,  48  Me.  516;  Mil- 

in     accordance     with     the     original  ler  v,  Corey,  15  Iowa,  166. 
and    manifest   intention:     Elliot    v. 


AGEEEMENTS    FOR    CONVEYANCE.  385 

The  debt  being  due  to  the  administrators  or  executors  of  the 
vendor,  and  the  lien  being  considered  as  held  by  the  heirs  in 
trust,  and  simply  as  a  pledge  or  security  for  its  payment,  on 
payment  of  the  debt  the  heirs  would  be  compellable  in  equity 
to  execute  the  trust  by  the  conveyance  of  the  title,  while  the 
purchase  money  would  go  to  the  personal  representatives.5 
The  equity  is  a  proper  subject  of  devise  by  the  vendee,  or,  in 
the  event  of  his  dying  intestate  will  descend  to  his  heirs  the 
same  as  other  realty,  and  in  them  is  vested  the  equity  of  re- 
demption. 

§  313.  Nature  and  Requisites.  The  statute  of  frauds, 
substantially  re-enacted  in  all  the  States,  provides  that  no  ac- 
tion shall  be  brought  to  charge  any  person  upon  any  contract 
for  the  sale  of  lands,  unless  such  contract  or  some  note  or 
memorandum  thereof  shall  be  in  writing,  and  signed  by  the 
party  to  be  charged  therewith,  or  some  other  person  there- 
unto by  him  lawfully  authorized,  and  where  there  is  no  excep- 
tion contained  in  the  statute  the  courts  will  not  create  any.6 
!No  special  form  is  required  as  an  evidence  of  such  contract, 
and  courts  seem  inclined  to  allow  a  wide  latitude  in  this  par- 
ticular.7 The  statute  permits  the  memorandum  to  be  signed 
by  the  vendor  or  his  agent,  yet  it  seems  that  if  made  by  an 
agent  it  should  still  be  in  the  principal's  name.8  If  the  terms 
of  the  contract,  the  consideration,  the  subject-matter  of  the 
sale,  etc.,  are  stated  with  reasonable  certainty,  the  memorandum 
is  sufficient.  Form  is  not  important,  nor  need  it  be  under 
seal,9  the  one  indispensable  requisite  being,  that  it  be  in  writ- 
ing and  signed  by  the  vendor  or  his  agent;10  and  the  power 

5  Gerard's  Tit.  to   Real  Est.  472;  made,  the  latter  a  sale  to  be  made. 

Johnson  v.  Corbett,   11   Paige,  265;  6  Hairston    v.    Jandon,    42    Miss. 

Moore    v.    Burrows,    34    Barb.    173.  380. 

The   agreement   to    deed,    above    re-  7  Bemis   v.    Becker,    1    Kan.    220 ; 

ferred    to,    is    very    different    from  s  Morgan   V.   Bergen,   3   Neb.   209. 

the    contract    of    purchase    or    con-  9  Moss    v.    Atkinson.    44    Cal.    5; 

ditions   of   sale,   under   the   English  Ruttenberg  V.  Main,  47  Cal.  213. 

system  of  conveyancing.     The  form-  10  Haydock    V.    Stow,    40    N.    Y. 

er     contemplates     a     sale     already  363. 

25 


386  ABSTRACTS    OF    TITLE. 

to  the  agent,  unless  provided  otherwise  by  statute,  may  be  given 
orally.11 

It  is,  however,  a  familiar  rule  in  this  branch  of  the  law, 
that  a  contract  which  equity  will  specifically  enforce,  must 
be  certain  in  its  terms,  and  the  certainty  required  has  refer- 
ence both  to  the  description  of  the  property  and  the  estate  to 
be  conveyed.  Uncertainty  as  to  either,  not  capable  of  being 
removed  by  extrinsic  evidence,  will  invalidate  the  contract.12 
Less  particularity  is  required,  however,  than  in  case  of  actual 
conveyances  of  the  same  land,  and,  as  a  rule,  any  description 
of  the  property  will  be  sufficient  provided  it  be  such  as  to 
enable  a  surveyor  to  locate  the  land.13  Every  contract  which 
gives  no  means  of  identifying  the  boundaries  of  the  land  sold,14 
which  furnishes  no  information  regarding  the  terms  of  the 
contract,15  or  which  by  faulty  or  imperfect  description  renders 
the  location  of  the  property  uncertain,16  will  be  incapable  of 
specific  enforcement. 

§  311.  As  Affected  by  the  Recording  Acts.  Interests 
in  land  acquired  through  contracts  of  purchase  fall  within  the 
protection  of  the  recording  acts.  Therefore,  although  another 
may  be  interested  as  a  part  owner  of  land  sold  by  contract,  if 
the  record  fails  to  show  that  interest,  and  shows  the  entire 
title  in  the  vendor,  the  purchaser  from  the  apparent  owner  of 
record,  without  notice  of  the  real  facts,  will  hold  the  title,  and 
so  of  his  assignee.17 

§  315.  Construction  of  Land  Contracts.  A  contract 
for  the  sale  of  land  is,  for  most  purposes,  regarded  in  equity  as 

1 1  Ruttenberg    v.    Main,    47    Cal.  tablish    such    a    contract    need    not 

213;    McWhorter    V.    McMahan,    10  describe  either  the  consideration  or 

Paige,  386.  the  lands  which  are  the  subject  of 

i2\Vhelan  V.   Sullivan,   102  Mass.  the  sale,  otherwise  than  by  a  refer- 

204;   Peters  V.  Phillips,  19  Tex.  74.  ence  therein  to  some  extrinsic  fact 

13  White  v.  Hermann,  51  111.  243.  or   instrument   by    means    of   which 

14  Whelan  r.  Sullivan,  102  Mass.  the  consideration  and  the  land  can 
204;  Holmes  v.  Evans,  48  Miss.  be  known  with  sufficient  certainty: 
247.  Washburn  V.  Fletcher,  42  Wis.  152. 

i5McGuire    V.    Stevens,   42  '  Miss.  16  Gigos  V.  Cochran,  54  Ind.  393. 

724.     The  writing  relied  upon  to  es-  17  Allen  v.  Woodruff,  96  111.  11. 


AGREEMENTS    FOE    CONVEYANCE.  387 

if  already  specifically  executed.18  When  consisting  of  two  in- 
struments they  will  be  construed  together  and  effect  given  as 
of  one  entire  instrument.19  Time,  unless  specifically  made  of 
the  essence  of  the  contract,  will  not  be  construed  to  the  disad- 
vantage of  the  vendee,  and  a  contract  which  uses  the  ordinary 
terms  to  express  the  time  for  the  payment  of  the  purchase 
money,  without  any  express  intention  that  such  time  is  ma- 
terial, does  not  make  it  so.20 

§  316.  Formal  Parts.  The  examiner  will  note  the  usual 
incidents  of  dates,  parties,  property,  etc.,  as  in  other  instru- 
ments, and  in  addition,  the  methods  of  transfer  and  conditions 
and  stipulations  annexed  to  the  contract,  if  any.  Though  us- 
ually executed  by  both  parties,  this  is  not  a  requisite,  and 
an  executory  contract  is  valid  and  binding  and  can  be  as  ef- 
fectively enforced  by  the  vendee,  if  signed  by  the  vendor 
alone.21  It  is  advisable,  however,  particularly  where  the  con- 
tract contains  mutual  covenants  or  stipulations,  to  note  a 
divergency  in  this  respect.  The  following  is  submitted  as  a 
synopsis  of  the  salient  features  of  an  ordinary  executory  con- 
tract : 


Alfred  Burwell, 

to    (or,   with) 

Charles  Dobbson. 


Agreement  to  Convey  [or,  Land  Con- 
tract. ] 

Dated  March  1,  1883. 
Recorded  March  3,  1883. 
J       Booh  210,  -page  590. 
First  party,   on  payment   of  $500.00,   agrees   to   convey  to 
second  party  by  good  and  sufficient  warranty  deed,  the  follow- 
ing described  land  situated  in  the   town  of  Mount  Pleasant, 
Racine  County,  ~\Vis.,  described  as   [here  set  out  the  descrip- 
tion]  free  from  all  liens  and  incumbrances,  except   [here  set 
out  incumbrance  recitals,  if  any]. 

Second  party,  in  consideration  of  the  foregoing,   agrees  to 

18  King    v.    Ruekman,  21    N.    J.  20  Reed  v.  Jones,  8  Wis.  392. 

Eq.  599.  21  Vassault   V.   Edwards,   43   Cal. 

18  lieraan   v.    Green,    1  Duer    (N.       458;    Evvins    v.    Gordon,    49    N.    H. 
Y.),  382.  444. 


388  ABSTRACTS    OF    TITLE. 

pay  said  sum  of  $500.00  in  manner  following,  to  wit,  etc.; 
[state  the  terms  briefly]. 

Time  to  be  the  very  essence  of  the  contract. 

Further  mutually  agreed  that  said  second  party  shall  have 
no  right  to  the  possession  of  said  premises  as  purchaser,  until 
after  full  payment  of  purchase  money,  and  that  he  takes  same 
as  tenant  from  said  first  party  until  the  last  payment  has  been 
made. 

Executed  by  both  parties  and  acknowledged  by  them  March 
1,  1883. 

t 

§  317.  Assignment  of  the  Contract.  In  the  assignment 
of  an  executory  contract  for  the  sale  of  land,  there  is  no  im- 
plied covenant,  on  the  part  of  the  assignor,  of  title  to  the  land 
in  the  vendor ;  all  that  can  be  implied  is  a  warranty  that  the 
assignor  owned  the  contract  and  had  the  right  to  assign  it, 
and  that  the  signatures  thereto  are  genuine.22  Such  assign- 
ments are  usually  very  brief  and  informal,  and  consist  of  a 
bare  recital  of  the  fact  of  assignment.  Whether  appended  to 
the  original  or  made  by  a  separate  instrument,  they  should  be 
attended  by  the  same  solemnities  relative  to  execution,  etc., 
as  were  necessary  in  case  of  the  original,  and  should  be  shown 
in  the  abstract  as  a  separate  link  in  the  chain.  The  effect  of 
an  assignment  is  to  convey  to  the  assignee  all  the  interest  of 
the  assignor  therein,  and  it  entitles  him  to  demand  and  receive 
a  deed  of  conveyance  from  the  vendor  or  his  heirs  upon  pay- 
ment of  the  purchase  money  due  thereon.  He  takes  it  sub- 
ject to  all  the  equities  existing  against  his  assignor,  and  is  en- 
titled to  all  the  beneficial  incidents.23 

The  delivery  of  a  contract  for  the  purchase  of  land  by  the 
purchaser  to  one  to  indemnify  him  against  loss  by  becoming 
a  guarantor  for  the  purchaser,  without  any  written  assignment 
thereof,    constiutes   an  equitable   mortgage,    and   a   subsequent 

22  Thomas  V.  Bartow,  48  N.  Y.  N.  Y.  42;  Gerard's  Titles,  475; 
193.  Reeves   v.   Kimball,   40   N.   Y.   299; 

23  Tompkins    v.    Seely,    29    Barb.  Parmly   V.  Buckley,    103   111.   115. 
212;   Cromwell  v.  Fire  Ins.  Co.,  44 


AGREEMENTS    FOR   CONVEYANCE.  389 

written  assignment  to  another  who  has  no  interest  in  the  same, 
and  where  no  words  of  conveyance  are  used,  would  be  inop- 
erative.24 A  written  assignment  of  a  deed  or  contract  for  the 
conveyance  of  land  is  not  necessary  to  the  creation  of  an  equita- 
ble mortgage,  and  the  only  effect  of  such  written  assignment 
is,  that  when  the  instrument  and  assignment  are  recorded,  they 
will  afford  constructive  notice  of  the  mortgagee's  rights,  and 
also  be  evidence  of  the  fact  of  assignment  in  case  of  a  dis- 
pute.25 The  doctrine  of  equitable  mortgages  by  deposit  of  title 
deeds  does  not  at  present  meet  with  much  favor  in  this  coun- 
try, however,  and  strict  proof  of  notice  is  generally  required 
from  the  equitable  mortgagee  to  bar  the  rights  of  subsequent 
purchasers  or  incumbrancers,20  while  in  several  States  the  doc- 
trine does  not  prevail  at  all.27 

§  318.  Performance  —  Sufficiency  of  Deed  and  Title. 
A  familiar  form  of  expression  used  by  conveyancers  in  draft- 
ing instruments  of  the  character  under  consideration,  in  rela- 
tion to  the  deed  to  be  given,  is,  "  good  and  sufficient,"  though 
not  infrequently  the  contract  expressly  calls  for  a  warranty 
deed.  The  term  "  good  and  sufficient  deed,"  etc.,  has  been  the 
subject  of  much  litigation  and  productive  of  a  large  amount 
of  judicial  reasoning,  both  as  regards  the  form  of  the  instru- 
ment and  the  title  conveyed  thereby.  In  this,  as  in  most  other 
much  litigated  questions,  a  complete  harmony  of  opinion  has 
not  prevailed,  but  it  would  seem  to  be  the  preponderating  doc- 
trine, that  a  covenant  to  give  a  good  and  sufficient  conveyance 
of  land  is  satisfied  by  a  quitclaim  deed,28  yet  with  respect  to 

24  Allen  v.  Woodruff,  96  111.  11;  Van  Meter  v.  MeFadden,  8  B.  Mon. 
and  see  Story  Eq.  Jur.  §  1020;  2  (Ky.)  435;  Strauss'  Appeal.,  49 
Wash.  Real  Prop.  82 ;  Mandeville  v.       Pa.  St.  358. 

Welch,  5  Wheat.  277.  28  Kyle   v.   Kavanagh,    103   Mass. 

25  Chase  v.  Peck,  21  N.  Y.  584;  356;  Thayer  v.  Torrey,  37  N.  J.  L. 
Jarvis  v.  Dutchor,  16  Wis.  307;  339;  Contra,  Watkins  v.  Rogers,  21 
Allen  r.  Woodruff,  96  111.  11;  Hall  Ark.  298.  That  parties  have  made 
V.  McDuff,  24  Me.  311;  Mounce  v.  a  written  agreement  for  a  sale,  with- 
Beyers,  16  Ga.  469.  out    providing    for    any    warranty, 

26  Bicknell  V.  Bicknell,  34  Vt.  indicates  that  they  did  not  intend 
498;   Story  Eq.  Jur.   §   1020.  there  should  be  any  warranty;   and 

27  Bowers  v.   Oyster,  3   Pa.  239;  if  the  conveyance  made   is  only  of 


390  ABSTRACTS    OF    TITLE. 

the  title,  such  a  conveyance  can  only  be  performed  by  a  deed 
which  conveys  the  entire  estate,29  and  vests  in  the  purchaser  an 
indefeasible  title.30  A  contract  to  execute  a  good  and  sufficient 
warranty  deed  entitles  the  purchaser  to  a  warranty  deed  of  the 
land  free  from  all  incumbrances.31 

In  every  contract  for  the  sale  of  lands,  whatever  may  be 
the  language  in  which  it  is  couched,  there  is  an  implied  under- 
taking to  make  a  marketable  title,  unless  such  an  obligation  is 
expressly  excluded  by  the  terms  of  the  agreement,32  and,  in 
the  absence  of  any  stipulation  as  to  the  kind  of  conveyance,  the 
presumption  is  that  the  vendor  undertook  to  make  such  a  con- 
veyance as  will  render  the  sale  effectual.33  Special  attention 
is  directed  to  these  matters  in  this  connection,  from  the  fact 
that  it  is  at  this  period  of  the  transaction  that  an  attorney  is 
usually  called  to  pass  upon  the  merits  of  the  proffered  title. 
Whatever  may  be  the  medium  of  transfer,  a  searching  investi- 
gation should  be  given  to  the  title,  which,  if  perfect  in  the 
person  proposing  same,  renders  the  vehicle  of  conveyance  of 
minor  importance;  but  an  offer  to  make  a  quitclaim  deed, 
which  conveys  only  the  vendor's  interest,  is  not  a  compliance 
with  an  agreement  to  make  title  in  a  case  where  the  chain  of 
title  upon  the  public  records  is  defective  or  broken,  or  the 
land  is  burdened  with  liens  and  incumbrances.34  In  executory 
contracts  the  purchaser  is  never  bound  to  accept  a  doubtful 
title.35 

the  right,  title  and  interest   of  the  32  Holland  v.  Holmes,  14  Fla.  390; 

vendor,  he  can  not  be  held  liable  for  Hill    V.    Ressegien,     17    Barb.    162. 

defects     of     title,     except     on     the  Compare,    Johnston    v.    Mendenhall, 

ground    of    fraud    or    concealment:  9  W.  Va.  112. 

Johnston   V.  Mendenhall,   9   W.  Va.  33  Hoffman  v.  Felt,  39  Cal.   109; 

112.  but  consult  Fitch  v.  Willard,  73  111. 

29Taft  v.  Kessel,  Wis.  273.  92. 

30  Delevan  v.  Duncan,  49  N.  Y.  34  Holland  r.  Holmes,  14  Fla. 
485;    Davis   V.   Henderson,    17    Wis.  390. 

105;    Parker   v.    Parmlee,   20   John.  35  Delevan   v.    Duncan,   49   N.   Y. 

130.  485;   Roberts  v.   Bassett,   105  Mass. 

31  Davidson  v.  Van  Pelt,  15  Wis.  407. 
341;    Burwell    v.    Jackson,    5    Seld. 

(N.  Y.)   536. 


AGIiKKAi!  NTS    FOR    CONVEYANCE.  391 

Whenever  the  contract  calls  for  a  specific  title  or  method 
of  conveyance,  the  vendor  must  convey  as  specified;30  thus, 
where  a  purchaser  has  contracted  for  a  title  of  record,  he  can 
not  be  compelled  to  take  a  title  depending  upon  adverse  pos- 
session under  the  statute  of  limitations,37  although  it  may  be 
perfectly  good.38  But  where  the  vendor  of  land  assumes  no 
responsibility  as  to  his  title,  and  is  to  make  only  a  quitclaim 
or  special  warranty  deed,  but  is  to  furnish  a  satisfactory  ab- 
stract of  title,  the  purchaser,  for  a  reasonable  objection  to  the 
title,  may  elect  whether  he  will  accept  a  conveyance  or  rescind 
the  sale,  provided  such  election  is  made  with  no  unnecessary 
delay.39  If  he  elects  to  take  it  under  a  unilateral  contract,  any 
delay  on  his  part  will  be  regarded  with  especial  strictness,  the 
fact  of  objection  in  such  case  not  justifying  great  delay  in 
performance,  and  it  has  been  held,  under  similar  circumstances, 
that  if  other  written  evidences  furnished  in  connection  with  the 
abstract,  show  a  marketable  title,  this  will  be  sufficient,  al- 
though the  abstract  of  itself  does  not.40 

§  319.  Forfeited  Contracts.  Agreements  for  convey- 
ance which  do  not  contemplate  an  immediate  sale  are  mainly 
resorted  to  by  two  classes ;  the  one,  where,  by  reason  of  finan- 
cial inability,  no  immediate  consummation  of  the  contract  of 
sale  can  be  effected ;  the  other,  wdiere  parties  desire  to  control 
the  disposition  of  property  for  a  limited  time  while  aw7aiting 
other  developments.  In  each  case  forfeitures  often  occur, 
sometimes  evidenced  by  foreclosure  proceedings,  but  more  fre- 
quently by  an  express  or  implied  declaration  of  forfeiture. 

Much  stress  is  often  placed  by  counsel  upon  the  fact  of  un- 
fulfilled contracts  of  sale  appearing  in  the  chain  of  title,  and 
objections  of  a  serious  nature  are  frequently  founded  upon 
them,  yet,  as  a  rule,  they  are  formidable  only  in  appearance. 
Where  a  contract  for  the  sale  of  land  provides  that  if  the  pur- 
se Scott  v.  Simpson,  11  Heisk.  38  Page  v.  Greely,  75  111.  400. 
(Tenn.)    310.                                                      39  Fitch  V.  Willard,  73  111.  92. 

37  Delevan    v.    Duncan,    4    N.    Y.  40  Welch  V.  Dutton,  79  111.  465.' 

485;  Tomlin  v.  McChord,  5  Marsh. 
(Ky.)    138. 


302  ABSTKACTS   01'   TITLE. 

chaser  fails  to  perform  any  of  his  covenants  the  vendor  or  his 
assigns  shall  have  the  right  to  declare  the  contract  null  and 
void,  a  subsequent  sale  by  such  vendor  to  another  party  for  a 
valuable  consideration,  after  the  time  fixed  for  performance,  is, 
in  effect,  a  declaration  of  forfeiture  of  the  purchasers'  con- 
tract41 

Subsequent  purchasers  of  land,  in  the  absence  of  express  no- 
tice of  latent  equities  in  others  than  their  grantors,  can  only 
be  affected  by  such  legal  consequences  as  may  be  fairly  drawn 
from  the  record  itself;  and  when  the  record  shows  that  the 
claim  of  prior  purchaser  has  been  cut  off  and  defeated  by  a  sale 
or  foreclosure,  or  by  a  forfeiture  of  his  contract,  such  subsequent 
purchasers  will  have  a  right  to  rely  on  what  is  thus  disclosed.42 
An  unfulfilled  contract  of  recent  date,  however,  should  al- 
ways be  closely  scrutinized  and  the  fact  of  forfeiture  clearly 
established,  for  it  must  be  remembered  that  a  vendor  in  such 
a  contract  can  do  no  act  in  derogation  of  his  vendee's  title  when 
such  vendee  is  not  in  default.  Therefore,  should  the  vendor 
convey  to  others  while  such  contract  is  still  subsisting,  all  per- 
sons who  claim  any  interest  in  the  land,  with  notice  of  the 
contract,  will  be  held  to  perform  such  contract  to  the  same 
extent  that  the  original  vendor  would  be  bound  if  he  had  re- 
tained the  title.43 

§  320.  Bond  for  a  Deed.  Bonds  for  the  conveyance  of 
land  or  interests  therein,  though  formerly  much  in  vogue,  have 
now  fallen  into  disuse,  and  when  shown  are  usually  in  the 
earlier  links  of  the  chain.  As  in  the  case  of  land  contracts, 
w7hen  followed  by  deed  only  a  brief  notice  is  required,  while 
if  the  condition  remains  unfulfilled  a  greater  degree  of  detail 
is  necessary.  The  usual  formal  requisites  of  this  class  of  obli- 
gations are  equally  necessary  to  bonds  for  title,  and  in  addition, 
as  it  provides  for  a  transfer  of  land,  the  essentials  necessary  to 

41  Streeper    V.    Williams,    48    Pa.  42  See    Warren    v.    Richmond,    53 

St.  450;  Grey  v.  Tubbs,  43  Cal.  111.  54;  Warder  v.  Cornell.  105  111. 
304;  Cummings  v.  Rogers,  36  Minn.       169. 

317.  43  Tate  v.  Pensacola,  Etc.  Co.,  37 

Fla.  439. 


AGREEMENTS  FOE  CONVEYANCE.  393 

entitle  it  to  record  and  to  afford  constructive  notice,  as  acknowl- 
edgment and  the  like ;  an  example  is  here  given : 


J  amies  Thompson 

to 
Thomas  Wilson. 


Bond  for  Deed. 

Dated  July  1,  1882. 

Recorded  July  3,  1882. 

Vol.  "  B  "  of  Deeds,  page  252. 

In  the  penalty  of  $1,000.00. 
Conditioned  for  the  conveyance,  by  "  good  and  sufficient " 
deed,  of  land  in  Kenosha  County,  Wis.,  described  as  the  south 
half  of  the  southeast  quarter  of  Section  ten,  Town  one  north, 
Range  twenty-three,  east  of  the  Ij-th  principal  meridian,  on 
payment  of  $500.00. 

Acknowledged  July  1,  1882. 

Special  provisions,  if  material,  should  be  shown  as  they 
occur.  A  bond  to  convey  land  upon  payment  of  the  stipulated 
price  is  evidence  of  a  mutual  agreement  of  the  obligee  to  pur- 
chase and  of  the  obligor  to  sell.  The  agreement  of  one  party 
is  a  consideration  for  that  of  the  other,  and  it  is  immaterial 
that  the  obligation  of  the  one  party  is  secured  by  bond,  and 
that  of  the  other  is  not  thus  secured.44  It  will  be  understood 
that  the  foregoing  remarks  have  reference  only  to  the  right  of 
a  vendee  to  compel  performance  by  the  vendor.  If  relief  is 
sought  against  the  vendee  then  he  must  sign  the  instrument  be- 
fore he  can  be  charged. 

§  321.  Agreements  for  Conveyances  by  Will.  Agree- 
ments to  convey  need  not  provide  for  the  delivery  of  a  deed, 
for  an  agreement  to  devise  property  by  will  may  be  subjected 
to  a  specific  performance  by  a  court  of  equity,  after  the  death 
of  the  granting  party,  with  the  same  effect  as  a  contract  to 
convey  while  living.  It  has  been  said  by  Williamson,  C. : 
"  There  can  be  no  doubt  but  that  a  person  may  make  a  valid 
agreement,  binding  himself  legally  to  make  a  particular  dispo- 

44  Ewins    v.    Gordon,    49    N.    H.       vendor   only.     See   Vassault   v.    Ed- 
444.     The  rule  is  the  same  in  case       wards,  43   Cal.   458. 
of  agreements  to   convey   signed  by 


39-i  ABSTRACTS    OF    TITLE. 

sition  of  his  property  by  last  will  and  testament.  The  law 
permits  a  man  to  dispose  of  his  own  property  at  his  pleasure ; 
and  no  good  reason  can  be  assigned  why  he  may  not  make  a 
legal  agreement  to  dispose  of  his  property  to  a  particular  indi- 
vidual, or  for  a  particular  purpose,  as  well  by  will  as  by  con- 
veyance, to  be  made  at  some  specified  future  period,  or 
upon  the  happening  of  some  specified  future  event.  It  may 
be  unwise  for  a  man  to  embarrass  himself  as  to  the  final  dis- 
position of  his  property,  but  he  is  the  disposer  by  law  of  his 
fortune,  and  the  sole  and  best  judge  as  to  the  manner  and 
time  of  disposing  of  it.  A  court  of  equity  will  decree  the  spe- 
cific performance  of  such  an  agreement  upon  the  recognized 
principles  by  which  it  is  governed  in  the  exercise  of  this  branch 
of  its  jurisdiction."  45 

45  Johnson  r.  Hubbell,  5  Am.  Law       Miss.    389;    Mundorf   v.   Howard,  4 
Reg.    177;    Stephens  v.  Reynolds,   6       Md.  459. 
N.    Y.    458;    Wright    V.    Tinsley,    30 


CHAPTER  XX. 

LEASES. 

§  322.     Nature  and  requisites.  §  325.     Implied  covenants. 

323.  Formal   parts.  326.     Agricultural  lands. 

324.  Covenants  and  conditions.  327.     Assignment  of  lease. 

§  322.  Nature  and  Requisites.  A  lease  is  a  contract  for 
the  possession  and  profits  of  land  and  tenements  on  the  one 
side,  and  a  recompense  of  rent  or  other  income  on  the  other ; 
or  it  is  a  conveyance  to  a  person  for  life  or  years,  or  at  will,  in 
consideration  of  such  rent.1  The  estate  or  interest  conveyed 
by  a  lease  is  personal  in  its  nature,  whatever  may  be  the  dura- 
tion of  the  term,  and  falling  below  the  character  and  dignity 
of  a  freehold,  it  is  regarded  as  a  chattel  interest,  and  is  gov- 
erned and  descendible  in  the  same  manner.2  When  made  in 
writing,  as  it  generally  must  be  if  the  term  exceeds  one  year 
in  duration,  a  lease  is  usually  mutually  signed  in  duplicate  and 
interchangeably  delivered  by  the  parties,3  but  if  only  signed  by 
the  lessor,  its  acceptance  by  the  lessee  raises  a  promise  on  his 
part  to  pay  the  rent  reserved  and  faithfully  observe  all  the 
stipulations  and  conditions  which  the  lease  shows  were  to  be 
observed  or  performed  by  him.4 

Whether  an  instrument  shall  be  considered  a  lease,  or  only 
an  agreement  for  one,  depends  on  the  intention  of  the  parties, 
as  collected  from  the  whole  instrument,  and  the  law  will  rather 
do  violence  to  the  words  than  break  through  the  intent  of  the 

1  Jackson  v.  Harsen,  7  Cow.  326;  but  for  all  practical  purposes  both 
2  Bl.  Com.  217.  are  regarded  as  original:  Dudley  v. 

2  2  Kent  Com.  342 ;  Goodwin  V.  Sumner,  5  Mass.  438 ;  Taylor's 
Goodwin,  33  Conn.  314.  Landlord    and    Tenant,     106     (6th 

•'5  The  copy  delivered   to  the  ten-       Ed.), 
ant  is  called  the  original  lease,  the  4  Pike  v.  Brown,  7  Cush.  134. 

one  to  the  landlord  the  counterpart, 

395 


396  ABSTRACTS    OF    TITLE; 

parties  by  construing  such  an  instrument  as  a  lease,  when  the 
intent  was  manifestly  otherwise.5 

The  proper  definition  of  a  lease  embraces  only  such  instru- 
ments of  conveyance  as  transfer  to  the  lessee  a  less  estate  than 
is  possessed  by  the  lessor,  thus  leaving  a  reversion  in  him,6  and 
this  in  the  sense  in  which  the  term  is  now  employed,  yet 
formerly  it  was  not  uncommon  to  grant  land  in  fee,  reserving 
an  annual  rent  charge,  notwithstanding  there  was  no  reversion, 
and  the  covenant  to  pay  such  rent  ran  with  the  land,  as  well 
as  the  condition  of  forfeiture  and  re-entry  for  its  non-payment.7 

§  323.  Formal  Parts.  Where  a  lease  is  found  upon  the 
records  which  has  expired  by  its  own  limitation,  it  raises  a 
vexed  question  among  examiners  as  to  whether  it  should  be 
shown  or  passed  without  notice.  It  can  in  no  way  affect  the 
title ;  it  is  not  a  charge  or  incumbrance,  nor  is  it  even  a  cloud. 
It  may  with  propriety  be  disregarded  unless  followed  by  a 
subsequent  renewal,  but  should  the  examiner  deem  it  expe- 
dient to  note  it,  as  being  included  in  and  covered  by  his  cer- 
tificate of  search,  a  very  brief  statement  by  way  of  appendix 
would  seem  fully  sufficient.  When  for  a  short  or  almost  ex- 
pired term,  being  a  charge  upon  the  fee,  it  may  be  shown 
briefly,  but  when  for  a  long  term  of  years  it  should  be  shown 
fully  and  succinctly.  When  for  ninety-nine  years,  or  renew- 
able forever,  it  has  much  of  the  dignity  and  many  of  the  at- 
tributes of  a  conveyance  of  the  fee  and  requires  corresponding 
treatment.  When  shown  fully,  the  examiner  will  observe  the 
names  of  parties  as  in  case  of  deeds ;  the  dates ;  the  description ; 
the  term ;  the  rent  reserved ;  the  general  and  special  covenants ; 
the  conditions  and  restrictions,  and  the  special  agreements,  if 
any.  The  execution  and  authentication  should  comply  with 
the  statute. 

Whenever  a  lease  is  of  sufficient  importance  to  show  in  ex- 
tenso  the  entire  instrument  should  be  carefully  perused  and 

5  Jackson   v.   Delacroix,   2   Wend.  Smith,  68 ;   2  Sugd.  Vend.  725,  Per- 

433.  kins'   Ed.   177;   Jackson  v.  Allen,  3 

c  Willard's    Conveyancing,   425.  Cow.  220. 
7  Van     Rensselaer     v.     Hays,     5 


LEASES.  397 

the  covenants  and  conditions  critically  observed.  The  aid  of 
an  experienced  conveyancer  is  frequently  dispensed  with  in 
preparing  instruments  of  this  character,  printed  forms  are 
generally  employed,  and,  when  they  are  not  obtainable,  copies 
are  made  from  books  of  forms  or  from  old  instruments.  In 
this  way  covenants  are  created  without  being  well  understood, 
and  which  often  astonish  the  parties  to  be  bound  when  occa- 
sion arises  which  calls  for  the  performance  of  them. 

The  dates  are  important  in  leases,  much  more  so  than  in 
absolute  conveyances,  and  frequently  are  of  controlling  efficacy 
in  determining  the  duration  of  the  term.  The  words  of  limita- 
tion of  the  term  will  also  be  carefully  noted,  as  also  the  words 
of  forfeiture  and  ceaser.  The  proper  words  to  be  used  in 
creating  a  limitation  upon  a  term  granted  are,  "  while,"  "  as 
long  as,"  "  during,"  and  "  until."  8  The  words  of  grant  are, 
"  demise,  lease  and  let,"  or  "  to  farm  let,"  but  these  words,  as 
-in  case  of  deeds,  have  lost  much  of  their  original  technical 
efficacy,  and  any  other  words  which  show  the  intention  will  do 
as  well.9 

The  matter  of  execution,  as  sealing,  acknowledgment,  etc.,  is 
statutory,  but  as  a  rule  neither  of  the  afore-mentioned  formal- 
ities are  necessary.     An  example  is  appended : 

Robert  M.  Johnson 
to  and  with 

Hiram  W.  Jamison 
Doc.  120,  UO. 

First  party  leases,  demises  and  lets  to  second  party  the  fol- 
lowing described  real  estate  in  Cook  County,  Ills.,  to  wit: 
[describe  the  property.] 

To  hold  for  the  term  of  ten  years  from  the  day  of  the  date 
hereof;  [or,  a  specific  date,  if  inserted],  at  the  annual  rental 
of  $500.00  payable  semi-annually. 

sVannatta  v.  Brewer,  32  N.  J.  Taylor's  Landlord  and  Tenant,  114 
Eq.  208.  (6th  Ed.). 

o  Hallett   v.  Wylie,  3  Johns.  44*; 


Lease. 

Dated,  etc. 

*       *       * 

* 

-&            ■£           *X* 

* 

098  ABSTRACTS    OF    TITLE. 

Said  second  party  covenants:  for  the  payment  of  the  rent 
reserved;  for  the  payment  of  all  taxes  and  assessments  levied 
on  said  premises  during  the  term  aforesaid;  against  waste, 
against  sub-leasing,  etc. 

Said  first  party  covenants:  for  quiet  enjoyment;  for  the 
renewal  of  the  term  hereby  demised  at  the  expiration  thereof 
for  the  same  time  and  upon  the  same  terms  as  this  indenture, 
etc. 

Provides,  that  in  case  said  second  party  shall  neglect,  or  fail 
to  perform  and  observe  any  or  either  of  before-mentioned  cove- 
nants on  his  part  to  be  performed,  the  term  hereby  demised  is 
to  cease  and  determine,  and  that  first  party  may  enter  and 
repossess  said  premises,  without  further  notice  or  demand  and 
expel  said  second  party  (and  those  claiming  under  him)  without 
prejudice. 

Provides  further,  that  in  case  the  premises  shall  be  destroyed 
by  fire  or  other  unavoidable  casualty,  that  the  term  hereby  de- 
mised shall  cease  for,  that  the  rent  be  suspended,  etc). 

Signed  and  sealed  by  both  parties. 

Acknowledgment. 

In  many  instances  it  will  be  necessary  to  set  out  the  cove- 
nants and  conditions  with  greater  precision  than  in  the  example, 
particularly  in  cases  of  ground  leases  for  long  terms  and  where 
the  land  demised  has  been  highly  improved  with  permanent 
buildings  by  the  tenant.  In  cases  of  leases  for  lives,  more  de- 
tail will  be  necessary  in  describing  the  term,  and  the  provisions 
looking  toward  forfeiture. 

§  324.  Covenants  and  Conditions.  Owing  to  the  igno- 
rance generally  prevailing  of  the  legal  effects  of  covenants  in 
leases  and  other  instruments,  which  are  often  executed  with- 
out any  particular  inspection  or  knowledge  of  their  contents, 
people  are  often  surprised  into  contracts  which  neither  party 
intended  when  the  instrument  was  executed.10  The  words 
"  yielding  and  paying,"  etc.,  constitute  a  covenant  for  the  pay- 

10  Phillips    v.    Stevens,    16    Mass.  239. 


LEASES.  399 

ment  of  rent,11  which  rims  with  the  land,  and  formerly,  if  not 
qualified  by  any  exception  or  condition,  bound  the  tenant  to 
pay  rent  during  the  continuance  of  the  term,  notwithstanding 
the  buildings  on  the  premises  were  destroyed  by  fire  during  the 
tenancy.12  Covenants  for  rebuilding,  repairing,  etc.,  run  with 
the  land  and  are  obligatory  upon  both  parties  and  their  as- 
signs,13 according  as  either  of  the  parties  are  bound.  The  cove- 
nant to  pay  for  any  buildings,  erected  by  the  tenant,  at  the  ex- 
piration of  the  term,  runs  with  the  land  and  inures  to  the 
benefit  of  the  assignee.14  The  covenant  for  renewal  is  one  of 
the  most  important  to  be  noticed  by  the  examiner,  and  like 
those  just  mentioned  is  incident  to  the  land.15  A  covenant  to 
renew  implies  the  same  term  and  rent,  but  not  the  same  cove- 
nants,16 and  is  satisfied,  even  though  providing  for  renewal 
under  the  same  covenants  contained  in  the  original  lease,  by 
a  renewal  omitting  the  covenant  to  renew.17  A  covenant  for 
indefinite  renewals  at  the  option  of  the  lessee  is,  in  effect,  the 
creation  of  a  perpetuity,  and  therefore  against  the  policy  of  the 
law.18  The  burden  of  the  payment  of  taxes  and  assessments  is 
frequently  assumed  by  the  tenant,  particularly  in  long  terms, 
but  whether  assumed  by  lessor  or  lessee  it  runs  with  the  land, 
and  binds  the  respective  assigns.19 

11  De  Lancy  v.  Ganong,  5  Seld.  9.  lTCarr  v.  Ellison,  20  Wend.   178. 

i2Hallett  V.  Wylie,  3  Johns.  44.  A    covenant    to    renew    which    does 

13  Allen  V.  Culver,  3  Denio,  284.  not    state    the    terms    or    length    of 

14  Lametti  V.  Anderson,  6  Cow.  time  of  such  renewal,  has  been 
302;  Van  Ransselser  v.  Pennimar,  held  void  for  uncertainty:  Laird  v. 
G  Wend.  5G9.  Boyle,  2  Wis.  431. 

15  Sutherland  v.  Goodnow,  108  HI.  18  Brush  v.  Beecher,  110  Mich. 
528.  597;   Morrison  V.  Rossignol.   5   Cal. 

1G  Rutgers    v.    Hunter,    6    Johns.  64.     A    lease    renewable    forever    is 

Ch.    218.     The  covenant   for   renew-  an  English  exotic  which  never  seems 

al  may  be  especially  enforced,  pro-  to    have    thrived    in    our    soil.     In 

vided      the     application     be     made  most  of  the   States  such   leases  are 

within   a    reasonable  time  after  the  invalid. 

expiration     of     the     former     lease,  19  Post     v.     Kearny,     2     Comst. 

and   the  owner   of  the  reversion   or  394;    Oswald   V.   Gilfert,    11    Johns, 

fee   will   be   compelled  to  execute   a  443. 
new    lease.     Banks    v.    Haskie,    45 
Md.  209. 


400  ABSTRACTS    OF    TITLE. 

The  covenants  of  leases  are  usually  protected  by  a  condition 
avoiding  the  estate  and  working  a  forfeiture  in  case  of  breach, 
and  this  condition,  which  is  of  the  essence  of  the  lease,  must 
always  be  noticed  at  such  length  as  its  importance  seems  to  de- 
mand. 

It  is  not  uncommon  for  the  landlord  to  give  the  tenant,  by 
an  agreement  in  his  lease,  an  option  to  purchase  the  demised 
premises,  and  whenever  such  agreements  are  inserted  they 
should  be  displayed  in  the  abstract. 

§  325.  Implied  Covenants.  It  is  a  fundamental  princi- 
ple that  the  law  will  always  imply  covenants  against  paramount 
title,  and  against  such  acts  of  the  landlord  as  destroy  the  bene- 
ficial enjoyment  of  the  premises.20 

§  326.  Agricultural  Lands.  To  avoid  perpetuities,  as 
well  as  the  creation  of  large  manorial  estates,  a  majority  of 
•the  States  have,  either  by  a  constitutional  provision  or  an  ex- 
press statutory  enactment,  prohibited  the  lease  or  grant  of  ag- 
ricultural land  for  a  longer  period  than  twelve  or  fifteen  years, 
and  leases  made  in  contravention  of  this  prohibition,  in  which 
there  is  reserved  any  rent  or  service  of  any  kind,  are  declared 
to  be  void.  The  leases  or  grants  contemplated  by  the  law,  are 
such  as  are  held  by  the  tenant  upon  a  reservation  of  an  annual 
or  periodical  rent  or  service,  to  be  paid  as  a  compensation  for 
the  use  of  the  estate  granted.  It  is  still  competent  to  make  a 
grant  for  life,  or  lives,  upon  a  good  consideration  to  be  paid  for 
the  estate,  which  consideration  may  be  payable  at  once,  or  by 
installments,  or  in  services,  so  that  it  be  not  by  way  of  rent. 
To  bring  it  within  the  law  there  must  be  a  reservation  of  rent 
or  service.21  This  may  seem  a  subtle  distinction,  but  it  is  one 
which  the  courts  have  made  and  which  they  strenuously  en- 

20  Streeter    v.    Streeter,    43     111.  grant   is   intended   to   be   beneficial, 

155;    Boreel    v.    Lawton,    90   N.    Y.  and  that,  so  far  as  he  is  concerned, 

293.     Hamilton   v.   Wright,   28   Mo.  he  will  do  no  act  to  interrupt  the 

199;  Plater  v.  Cunningham,  21  Cal.  free    and    peaceable    enjoyment    of 

233 ;    This   results  from   the  princi-  the   thing   granted.     See    Dexter   V. 

pie  of  law,  that  every  grant  carries  Manley,  4  Cush.    (Mass.)   24. 
with    it    an    implied    understanding  21  Parsell    v.    Stryker,    41    N.    Y. 

on  the  part  of  the  grantor  that  the  480. 


LEASES.  401 

force.  A  reservation  is  denned  as  a  keeping  aside,  or  provid- 
ing, as  when  a  man  lets,  or  parts  with  his  land,  but  reserves,  or 
provides  himself  a  rent  or  income  out  of  it  for  his  livelihood ; 
and  a  rent  is  said  to  be  a  sum  of  money,  or  other  consideration, 
issuing  yearly  out  of  lands  and  tenements.  It  must  be  profit, 
but  it  is  not  necessary  that  it  should  be  money.  The  profit 
must  be  certain,  and  it  must  also  issue  yearly.22 

§  327.  Assignment  of  Lease.  To  constitute  an  assign- 
ment of  a  leasehold  interest,  the  assignee  must  take  precisely 
the  same  estate  in  the  whole  or  in  a  part  of  the  leased  premises 
which  his  assignor  had  therein.  He  must  not  only  take  for 
the  whole  of  the  unexpired  term,  but  he  must  take  the  whole 
estate,  or  in  other  words,  the  whole  term ;  23  for  the  word 
"  term  "  does  not  merely  signify  the  time  specified  in  the  lease, 
but  also  the  estate  and  interest  that  passes  by  the  lease ;  for  the 
term  may  expire  during  the  continuance  of  the  time,  as  by 
surrender,  forfeiture,  and  the  like.24 

The  grant  of  an  interest  which  may  possibly  endure  to  the 
end  of  the  term,  is  not  necessarily  a  grant  of  all  the  estate  in 
the  term.  Whether  the  conveyance  be  in  the  form  of  a  lease 
or  an  assignment,  if  it  provides  new  conditions  with  a  right  of 
entry,  or  new  causes  of  forfeiture  are  created,  then  the  tenant- 
holds  by  a  different  tenure  and  a  new  leasehold  interest  arises, 
which  can  not  be  treated  as  an  assignment  or  a  continuation  to 
him  of  the  original  term.  When  an  estate  is  conveyed  to  be 
held  by  the  grantee  upon  a  condition  subsequent,  there  is  left 
in  the  grantor  a  contingent  reversionary  interest ;  25  and  where 
by  the  terms  of  an  instrument  which  purports  to  be  an  under 
lease,  there  is  left  in  the  lessor  a  contingent  reversionary  inter- 
est, to  be  availed  of  by  an  entry  for  breach  of  condition,  which 
restores  the  sub-lessor  to  his  former  interest  in  the  premises, 

22  Stephens  v.  Reynolds,  6  N.  Y.  see,  is  an  assignee :  Kearney  v.  Post, 
458;   2  Blk.  Com.  41.  1  Sandf.  105. 

23  Van    Ransselaer    v.    Gallup,    5  24  2  Black  Com.  144. 

Demo,  454.     The  purchaser  under  a  25  Austin   v.  Cambridgeporl    Par- 

mortgage  of  all  the  estate  of  a  les-       ish,   21    Pick.    215;    Brattle   Square 

Church  v.  Grant,  3  Gray,  147. 
26 


402  ABSTRACTS    OF    TITLE. 

the  sub-lessee  takes  an  inferior  and  different  estate  from  that 
which  he  would  acquire  by  an  assignment  of  the  remainder  of 
the  original  term ;  that  is  to  say,  an  interest  which  may  be 
terminated  by  forfeiture,  on  new  and  independent  grounds, 
long  before  the  expiration  of  the  original  term.  If  the  smallest 
reversionary  interest  is  retained,  the  tenant  takes  as  sub-lessee, 
and  not  as  assignee.26 

20  Dunlap  v.   Billiard,    131   Mass.    161;  McNeil  v.  Kendall,  128  Mass. 
245. 


CHAPTER  XXI. 

MISCELLANEOUS    EVIDENCE    AFFECTING    TITLE. 

§  328.  General   remarks.  §  335.  Incorporeal     hereditaments. 

329.  Irregular    instruments.  336.  Easements    and    servitudes. 

330.  Municipal   ordinances.  337.  Party   wall   agreements. 

331.  Executive    approval    of  Or-  338.  Letters. 

dinances.  339.     Affidavits. 

332.  Operation  and  effect  of  or-  340.     Continued  —  General  requi- 

dinances.  sites. 

333.  Municipal  resolution.  341.     Unrecorded  instruments. 

334.  Official  certificates. 

§  328.  General  Remarks.  In  this  chapter  it  is  proposed 
briefly  to  notice  a  variety  of  instruments  which  are  not  sus- 
ible  of  classification  in  other  divisions  of  the  work,  but 
which  have  a  direct  hearing  upon  the  question  of  title,  and 
must  be  included  in  all  properly  prepared  abstracts,  whenever 
they  appear  upon  the  records  during  the  period  covered  by 
the  search.  Of  this  nature  are  affidavits,  municipal  ordinances, 
letters,  etc.,  all  of  which  are  proper,  and,  under  certain  condi- 
tions, competent  evidence,  in  support  of  the  facts  so  presented. 

§  329.  Irregular  Instruments.  This  is  the  name  ap- 
plied by  examiners,  to  all  deeds  and  instruments  in  which  the 
subject-matter  -is  not  sufficiently  identified  to  permit  them  to 
be  posted  in  the  tract  indices.  They  include  "  blanket  "  con- 
veyances, that  is,  all  instruments  of  conveyance  in  which  the 
property  is  mentioned  only  in  general  terms  and  not  specific- 
ally ;  letters  of  attorney  giving  only  a  general  power ;  releases, 
confirmations,  etc.,  which  describe  no  property  but  allude  to 
other  instruments  for  identification ;  affidavits  of  facts  not 
directly  connected  with  laud,  but  which  incidentally  affect  or 
implicate  title;  and  all  other  instruments  and  documents  which 

403 


404  ABSTRACTS    OF    TITLE. 

do  not  upon  their  face  indicate  the  particular  parcel  of  land 
they  affect. 

In  compiling  the  abstract  these  matters  should  receive  care- 
ful attention,  and  not  only  should  all  independent  instruments 
which  generally  affect  the  title  be  shown  but  also  appendices 
to  instruments  conveying  other  lands,  where  such  appendices 
have  any  appreciable  bearing  upon  the  property  in  question. 
The  f ollowmg  will  serve  to  illustrate : 

Appended  to  Document  31ft  ,61k,  in  book  1086,  page  631, 
recorded  Sept.  13,  1881  is  the  following: 

Subscribed   and   sworn   to   Oct.    23, 
1880. 

That  he  was  a  bachelor  until  July, 
1836. 


Affidavit 

by 

Thos.   J.    Walsh. 


§  330.  Municipal  Ordinances.  A  city  council  is  a  min- 
iature legislature,  authorized  to  legislate  for  a  locality,  and 
its  ordinances,  within  the  power  intrusted,  have  all  the  force 
of  laws  passed  by  the  legislature.  It  is  restricted,  however,  to 
such  matters  as  are  not  at  variance  with  the  general  laws  of 
the  State,  and  are  reasonable  and  adapted  to,  or  proper  for, 
the  purposes  of  the  corporation.  Ordinances  must  be  consistent 
with  public  legislative  policy,  and  must  not  contravene  common 
right.     These  are  general  principles  universally  recognized.1 

Without  entering  into  a  discussion  of  the  nature,  requisites 
and  validity  of  ordinances,  which  as  a  rule,  must  be  determined 
by  reference  to  the  organic  act  or  charter  of  the  municipality, 
it  may  be  stated  generally,  that  such  ordinances  must  be  adopted 
by  the  proper  body,  and  be  published  in  the  manner  provided 
by  law,2  the  practical  operation  of  an  ordinance  dating  from 
its  passage  and  publication.     When  so  passed  and  published 

l  Long  v.  Shelby  County,   12  Re-  2  1     Dil.    Municipal     Corp.     376; 

porter,  285;   Maxwell   v.  Jonesboro.       Barnett  V.  Newark,  28  111.  62;  Con- 
11  Heisk.   (Tenn.)   257;  Williams  p.       boy   0.   Iowa   City,   2    Iowa,   90. 
Augusta,  4  Ga.  509;   Mount  Pleas- 
ant V.  Breese,   11   Iowa.  399. 


MISCELLANEOUS    EVIDENCE    AFFECTING    TITLE.  405 

they   afford  constructive  notice   to  all  persons  bound   to   take 
notice  of  them.3 

The  only  occasion  the  examiner  will  have  to  show  the  acts 
of  municipal  bodies,  will  be  in  relation  to  the  opening  or 
vacating  of  streets  and  alleys,  with  an  occasional  conveyance 
of  municipal  property,  which  should  be  prefaced  by  a  synopsis 
of  the  ordinance  or  resolution  authorizing  same.  Being  in  the 
nature  of  public  laws  no  record  is  required  in  the  registry  of 
deeds,  though  this  may  be  accomplished  by  the  individual,  and 
recourse  must  usually  be  had  to  the  corporate  records.  The 
abstract  should  show:  the  dates  respectively  of  passage  and 
publication,  and,  when  recorded,  the  date  of  record ;  the  subject- 
matter,  briefly  stated;  and  the  attestation,  if  any  is  required. 
The  following  will  more  fully  illustrate  the  subject: 


Vacation 
by 

The   Village  of  Jefferson. 


Ordinance,  No.  1,000. 

Adopted  Sept.  6,  1873. 

Recorded  Sept.   15,  181 '3. 

Booh  6  of  plats,  page  13. 
Recites,  that  whereas,  a  petition  has  been  duly  filed  with 
the  Board  of  Trustees  of  the  Village  of  Jefferson,  signed  by 
Thos.  Wilson  and  Lillie  M.  C.  Wilson,  representing  that 
they  are  the  owners  of  Blocks  76  and  77  in  Norwood  Park, 
and  praying  said  board  to  order  a  vacation  of  all  that  part 
of  Washington  Street  lying  between  said  Blocks,  commencing 
at  Indiana  Street,  and  running  to  Eastern  Avenue. 

And  whereas,  satisfactory  evidence  having  been  filed  by 
said  petitioners  of  due  notice  of  said  application,  and  no  ob- 
jections appearing ,  therefore  it  is, 

Ordained  by  the  President  and  Board  of  Trustees  of  the 
Village  of  Jefferson,  that  all  that  part  of  Washington  Street, 
in  Norwood  Park,  which  lies  between  Blocks  76  and  77,,  be- 
ginning  on  Indiana  Street  and  running  through  to  Eastern 
Avenue,  be  and  same  hereby  is  vacated. 
Published  Sept.  7,  1873. 

3  Palmyra  v.  Morton,  25  Mo.  593;    Buffalo  v.  Webster,  10  Wend.  99. 


406  ABSTRACTS    OF    TITLE. 

Xote. —  Appended  to  the  record  of  the  foregoing  is  a  certifi- 
cate by  S.  JI.  Davis,  "  Village  Clerk/'  that  same  is  a 
true  copy  of  the  original  ordinance. 

Xot  infrequently  a  discriptive  note  setting  forth  the  ma- 
terial facts  will  be  sufficient  to  impart  all  necessary  informa- 
tion. Whenever  this  method  can  be  advantageously  employed 
its  use  is  recommended,  in  order  that  the  abstract  may  not  be 
burdened  by  unimportant  details.  This  plan  will  be  found 
to  produce  eminently  satisfactory  results  in  cases  where  cer- 
tain acts  are  required  to  follow  the  ordinance  before  it  be- 
comes effective,  and  in  such  cases  a  full  resume  of  the  supple- 
mentary acts  should  be  embodied  in  the  note.  The  following 
example  will  more  fully  explain  the  method : 

jSTote. —  From  document  No.  2708  of  the  municipal  year  189k, 
of  the  files  of  the  proceedings  of  the  Common  Council 
of  the  City  of  Chicago,  on  file  in  the  office  of  the  City 
Clerk  of  said  city,  it  appears  that  an  ordinance  wa* 
passed  by  said  Council  on  May  12,  1895,  for  the  vaca- 
tion of  the  East  135  feet  of  alley  in  Block  6,  Jones' 
Subdivision  of  the  Northeast  quarter  of  Section  7, 
Town.  39  North,  Range  16  East  of  the  3d  Principal 
Meridian,  but  with  a  proviso  that  same  shoidd  not  take 
effect  until  a  new  alley  18  feet  in  width  should  have 
been  opened  from  North  to  South  through  the  South 
170  feet  of  said  Block,  the  East  line  thereof  to  be  135 
feet  }Ycst  of  Blank  Street,  in  accordance  with  map  at- 
tached to  said  ordinance ;  that  said  alley  should  be 
opened  and  plat  of  same  placed  of  record  within  30 
days  from  passage  of  ordinance,  otherwise  same  to  be 
of  no  effect. 

The  new  alley  referred  to  in  the  foregoing  note  would  prop- 
erly be  shown  as  a  subdivision  of  the  block  in  question  and 
the  minutes  of  survey  and  plat  would  immediately  follow. 

It  will  often  happen  that  it  may  be  deemed  unnecessary  or 


MISCELLANEOUS    EVIDENCE    AFFECTING    TITLE.  407 

inexpedient  to  set  forth  the  terms  of  an  ordinance,  or  the 
examiner  may  be  directed  to  show  same  briefly  with  a  reference 
to  the  record  for  particulars.  Thus,  take  the  case  of  a  trans- 
fer of  territory  from  one  municipality  to  another.  In  such 
event  the  action  of  both  municipalities  should  be  shown,  yet 
this  may  be  accomplished  briefly,  in  most  cases,  by  simple 
notes,  as  for  example : 

Note. —  There  was  recorded  on  April  22,  1887 ,  in  Book  201ft 
at  page  206,  as  Doc.  81 9,86 Jf,  an  ordinance  for  the  an- 
nexation of  the  territory  of  the  Village  of  Jefferson, 
known  as  Section  36,  Town.  1^0  North,  Range  13  East 
of  the  3d  Principal  Meridian,  to  the  City  of  Chicago. 
Approved  and  ratified  at  the  general  election  held  Tues- 
day, April  1,  1887. 

Also,  Recorded  May  25,  1887,  as  Doc.  833,lf77,  in 
Book  201+7  at  page  888,  is  an  ordinance  for  the  annexa- 
tion to  the  City  of  Chicago  of  the  territory  embraced 
within  the  limits  of  Section  36,  Town.  IfO  North,  Range 
13  East  of  the  3d  Principal  Meridian,  with  the  map  of 
said  annexed  territory  attached. 

For  particulars  reference  is  made  to  the  records. 

Where  the  event  is  ancient  and  no  questions  have  been  raised 
respecting  it,  or  where  all  questions  growing  out  of  it  are 
settled,  this  brief  mention  will  be  sufficient  to  impart  all  the 
information  necessary.  On  the  other  hand,  if  the  event  is 
recent  a  more  ample  exhibition  of  the  instruments  should,  per- 
haps, be  made.  Matters  of  this  kind,  however,  do  not  reach 
the  title  to  the  land  and  their  significance,  at  best,  is  only 
political.  The  principal  object  of  their  insertion  in  the  ab- 
stract is  to  appraise  the  person  perusing  it  of  the  proper  loca- 
tion of  the  property. 

§  ,331.  Executive  approval  of  Ordinances.  Tn  many 
cases  the  signature  or  expressed  approval  of  the  Mayor,  or  some 
corresponding  officer,  is  required  to  give  validity  to  an  ordi- 


408  ABSTRACTS    OF    TITLE. 

nance,  and  when  the  submission  thereof  to  the  executive  of  the 
municipality  is  made  necessary  by  charter  or  general  laws, 
a  noncompliance  will  be  fatal  to  the  ordinance.4  In  such  cases 
the  fact  of  submission  and  approval  should  be  noted  as  a  ma- 
terial part  of  the  abstract  of  the  ordinance. 

§  332.  Operation  and  Effect  of  Ordinances.  It  does  not 
seem  that  a  municipal  corporation,  more  than  an  individual, 
can  convey  the  title  to  real  estate  in  any  other  manner  than 
by  a  duly  executed  deed,5  and  where  a  conveyance  has  been 
attempted  by  ordinance  no  title  has  been  held  to  pass,  while 
such  an  ordinance  has  further  been  held  to  be  so  defective  as 
a  conveyance  as  not  to  give  color  of  title  in  support  of  an 
adverse  possession.6  A  release  of  a  right  in  real  property, 
by  ordinance  and  not  by  deed,  will,  it  seems,  be  enforced  in 
equity,  when  within  the  scope  of  the  corporate  power,  and 
upon  consideration,7  while  the  legal  effect  of  a  vacation  of  a 
public  street  or  avenue,  is  to  revest  the  title  of  the  land  em- 
braced within  its  limits,  in  the  original  owner  or  person  who 
dedicated  same.8 

§  333.  Municipal  Resolutions.  A  resolution  is  an  order 
of  the  council  or  governing  board,  of  a  special  and  temporary 
character,9  but,  as  a  general  rule,  has  the  same  effect  as  an 
ordinance,  as  both  are  legislative  acts.10  Where  any  matter 
is  committed  to  the  decision  of  the  council  by  the  charter, 
which  is  silent  as  to  the  mode,  the  decision  may  be  evidenced 
by  a  resolution,  and  need  not  necessarily  be  by  an  ordinance,11 
hence  it  is  customary  in  sales  of  the  municipal  real  estate,  to 
authorize  the  sale  and  transfer  of  same  by  a  resolution  which 

4  Babbidge  V.  Astoria,  25  Oreg.  8  Hyde  Park  v.  Borden.  94  111. 
417.  26;  Gebhart  v.  Reeves,  75  111.  301. 

5  Dill.  Mun.  Corp.  §  451,  and  9  Blanchard  V.  Bissell,  11  Ohio 
see,  Cofran  v.  Cofran,  5  N.  H.  458;  St.    96. 

Ang.  &  Ames  Corp.  §  193.  io  Sower  v.   Philadelphia,   35  Pa. 

C  Beaufort  v.  Duncan,  1  Jones  L.  St.  231 ;  Gas  Co.  v.  San  Francisco, 
(N.  C.)   239.  6  Cal.   190. 

7  Grant  v.  Davenport,  18  la.  179.  u  State  v.  Jersey  City,  3  Dutch. 

(N.  J.)   493. 


MISCELLANEOUS    EVIDENCE    AFFECTING    TITLE.  409 

also  directs  the  method  of  conveyance  and  nominates  the  per- 
sons who  are  to  execute  the  deed.12 

It  would  seem  to  be  the  prevailing  doctrine  that  municipal 
conveyances  of  real  property  which  upon  their  faces  are  regu- 
lar, carry  with  them  the  presumption  of  a  due  and  proper 
execution  in  pursuance  of  law; 13  "  hence,"  observes  Air.  Dillon, 
"  it  is  unnecessary  for  the  grantee  or  party  claiming  under 
it  to  produce  the  special  resolution  or  ordinance  authorizing 
its  execution."  14  This  may  be  true  for  the  ordinary  purposes 
of  conveyancing,  but  can  not  be  regarded  as  a  safe  rule  in 
the  preparation  of  an  abstract,  which  should  not  only  disclose 
sufficient  of  the  deed  to  show  a  regular  execution  upon  its 
face,  but  also  the  authority  in  pursuance  of  which  it  was 
made,  that  counsel  may  know  from  inspection  and  comparison 
that  it  was  duly  executed,15  it  being  the  duty  of  counsel, 
so  far  as  may  be,  to  reduce  presumptions  to  certainties,  and 
whenever  an  abstract  is  presented,  showing  a  municipal  deed 
but  no  order  or  resolution  in  support  of  it,  a  requisition  should 
be  made  for  the  evidence  of  the  authority  under  which  it  was 
executed.  In  actions  for  the  trial  of  disputed  land  titles, 
where  a  deed  relied  upon  is  the  act  of  a  municipal  corporation 
the  authority  for  its  execution  must  generally  be  put  in  evi- 
dence, 15a  and  it  would  seem  that  counsel  examining  title  should 
insist  upon  the  same  proof. 

12  If   the    charter    or    constituent  to   the    charter   which   prescribed   a 

act  of  the  corporation  prescribes  a  rule  for  such  cases, 
particular  mode  in   'which   the  cor-  13  Jamison    v.    Fopiana.    43    Mo. 

porate    property    shall    be    disposed  565:   Flint  r.  Clinton  County.  12  N\ 

of.  that  mode  must  be   pursued :    2  H.  43.     See  Hart  v.  Stone.  30  Conn. 

Dill,  on  Mun.  Corp.   §  447.  and  see  94. 

MeCracken  r.  San  Francisco.  16  Cal.  1 4  Dill.  Mun.  Corp.  §  450. 
591;  Grojan  r.  San  Francisco.  18  15  Conveyances  of  real  property 
Cal.  590.  where  it  was  held  that  by  the  officers  of  a  municipal  eor- 
where  municipal  officers,  under  the  poration  must  be  made  by  virtue  of 
authority  of  a  void  ordinance,  had  a  special  authority  for  that  pur- 
made  sales  of  corporate  real  estate,  pose:  Merrill  v.  Burbank,  23  Me. 
no  title   passed,   the   ordinance   and  538. 

sales  not  having  been  in  conformity  15a  Ward  r.  Lumber  Co.,  70  Wis. 

445. 


410  ABSTRACTS    OF   TITLE. 

§  334.  Official  Certificates.  Certificates  of  officers  hav- 
ing the  legal  custody  or  supervision  of  records,  etc.,  as  well  as 
of  ministerial  officers  in  the  performance  of  some  legal  duty, 
are  of  frequent  occurrence.  Usually  they  are  appended  to 
some  kind  of  documentary  evidence  to  which  they  have  special 
relation,  but  they  may  be  used  as  affirmative  and  independent 
proof  of  matters  within  the  certifying  officer's  jurisdiction. 
Instances  are  afforded  by  the  certificates  of  levy,  attachment, 
etc.,  made  by  officers  executing  the  process  of  courts  and  which 
afford  internal  evidence  of  the  matters  therein  recited. 

Aside  from  the  certificates  of  officers,  and  others,  reciting  their 
own  acts  in  connection  with  some  particular  proceeding  in  the 
line  of  their  official  duty,  there  is  a  class  of  official  custodians 
who  certify  from  the  records,  books,  files,  etc.,  committed  to 
their  care,  and  to  whose  certificates,  under  their  official  seal, 
if  they  have  any,  the  statute  in  some  cases  and  comity  in 
others,  attaches  a  certain  degree  of  evidentiary  value. 

When  a  public  officer  is  required  or  authorized  by  law  to 
make  a  certificate  or  affidavit,  touching  an  act  performed  by 
him,  or  to  a  fact  ascertained  by  him  in  the  course  of  his 
official  duty,  and  to  file  or  deposit  it  in  a  public  office,  such 
certificate  or  affidavit  when  so  filed  or  deposited  is  received 
as  presumptive  evidence  of  the  facts  therein  stated,  unless 
its  effect  is  declared  by  some  special  provision  of  law.  Under 
this  head  come  certificates  of  sale  by  masters  in  chancery  and 
of  levy  and  attachment  by  sheriffs,  examples  of  which  will  be 
found  further  on. 

Certificates  annexed  to  other  documents  for  the  purpose  of 
proof  or  verification  do  not,  as  a  rule,  require  nor  should  they 
receive  extended  notice,  but  when  standing  alone,  and  as  af- 
firmative evidence  of  some  particular  fact,  they  acquire  a  certain 
dignity  that  calls  for  commensurate  treatment.  When  these 
certificates,  for  instance,  allude  to  facts  which  appear  from  the 
books,  files  and  records  of  the  officers  of  State  in  regard  to 
the  transfer  of  land  by  or  to  the  government,  Federal  or  State, 
or  by  the  State  to  individuals,  the  original  evidence  of  which 
is  not  accessible,  or  has  been  destroyed  or  lost,  they  become 


MISCELLANEOUS    EVIDENCE    AFFECTING    TITLE.  411 

of  the  highest  importance  and  should  be  shown  in  detail.     As, 
per  example : 


Certificate 
by 
Ernst  G.  Timmc,  Sec- 
retary  of  State,   of 
the  State  of  Wiscon- 
sin. 


Proof  of  Conveyance. 

Dated,  etc. 
*  *  * 


Said  Secretary  certifies,  that  from, 
the  boohs,  files  and  records  of  the  of- 
fice of  Secretary  of  State,  it  appears 
that  on  the  10th  day  of  June,  1850,  the  following  described 
real  estate,  situated  in  the  State  of  Wisconsin,  viz.:  [set  out 
description]  was  duly  transferred  by  the  United  States  to  the 
State  of  Wisconsin,  and  that  on  the  15th  day  of  July,  1852, 
the  above  described  real  estate  was  duly  transferred  by  the] 
State  of  Wisconsin  to  William  Jones. 

Signed  by  said  Secretary  and  the  great  (or  lesser)  seal  of 
the  State  of  Wisconsin  affixed. 

Where  certificates  are  appendant  merely,  the  degree  of  notice 
must  be  determined  by  the  character  of  the  principal  matter; 
as,  if  in  the  foregoing  case  a  transcript  of  books,  files,  etc., 
had  been  made,  the  certificate  would  simply  have  been  by  way 
of  verification,  and  the  examiner  might  have  shown  this  by 
a  formal  abstract  of  the  instrument  as  above,  or  he  might  with 
equal  propriety  mention  it  in  this  manner: 

Certificate  by  Ernst  G.  Timme,  Secretary  of  State,  tliat  the 
"  annexed  and  foregoing  "  is  a  true  and  correct  transcript  of 
all  boohs,  files,  records,  certificates  and  other  written  or  docu- 
mentary evidence  of  title,  on  file  or  of  record  in  his  office, 
relating  to  or  appertaining  to  the  title  to  the  lands  described 
in  the  foregoing  transcript,  and  of  the  whole  thereof,  appended. 

§  335.  Incorporeal  Hereditaments.  In  an  English 
work  on  titles  this  subject  would  occupy  no  inconsiderable 
space,   while  in  the  compilation  and  examination  of  English 


412  ABSTRACTS    OF    TITLE. 

abstracts  it  plays  a  conspicuous  part,  yet  in  the  United  States 
the  term  is  seldom  used,  while  the  number  of  strictly  incor- 
poreal hereditaments  is  very  small.16  In  this  country  they 
are  usually  such  things  as  come  within  the  definitions  and 
general  doctrines  of  easements  and  servitudes. 

§  336.  Easements  and  Servitudes.  An  easement  is  tech- 
nically understood  to  be  raised  or  created  by  a  grant,  but 
may  be  reserved  in  a  conveyance  as  effectually  as  by  a  grant 
by  deed.  Separate  instruments  are  rarely  employed  to  create 
easements,  but  occasionally  grants  of  rights  of  way  will  be 
found  as  well  as  instruments  granting  riparian  rights,  and  in 
all  cases,  where  such  instruments  are  matters  of  record,  pur- 
chasers of  the  land  affected  thereby  will  take  the  premises 
subject  to  whatever  rights  they  may  confer  upon  others  and 
burdened  with  the  stipulated  service.17  Where  an  easement 
is  appurtenant  or  appendant  to  an  estate  in  fee  in  lands,  or 
in  gross  to  the  person  of  the  grantee  for  life  or  for  years,  it  is 
incapable  of  alienation  or  conveyance  in  fee.18  When  in  gross, 
it  is  purely  personal  to  the  holder,  and  can  not  be  assigned, 
nor  will  it  pass  by  descent;19  when  appurtenant,  it  is  attached 
to  the  land  as  an  incident  and  passes  with  it,  whether  the  land 
be  conveyed  for  a  term  of  years,  for  life,  or  in  fee.20  Being 
incident  to  the  land,  it  can  not  be  separated  from  or  transferred 
independent  of  the  land  to  which  it  inheres.21  Where  an  ease- 
ment is  created  by  a  separate  instrument,  as  a  grant  of  a  right 

16  The  principal  incorporeal  here-  20  See     "  Easements     and     Servi- 

ditainents    according    to    the    com-  tudes,"    supra,    p.    21. 
mon  law;  are:  Advowsons  and  next  21  Wash.    Easements,    10;    Koelle 

presentations,   tithes,   manors,  fran-  v.  Knecht,  99  111.  496.     "  They  are 

chises,    offices,    commons,    rights    of  in  the  nature  of  covenants  running 

way,    of    light,    wood,    water,    rents  with   the    land,"   says   the  court   in 

and    annuities:    Lee    on    Abstracts,  Garrison  V.  Rudd,  19  111.  558,  "and 

*117;   2  Black,  Com.  21.  like   them,   must   respect  the   thing 

i"  Turpin  v.  R.  R.  Co.,  105  111.  11.  granted  or  demised,  and  must  con- 

18  Wash.     Easements,     10;     Koelle  cern    the   land    or    estate    conveyed. 
v.   Knecht,   99   111.  496.  They  pass   by   a   conveyance  of  the 

19  Smiles   v.   Hastings,   22   N.    Y.  land,     under     the     term     '  appurte- 
217;   Koelle  V.  Knecht,  99   111.  496.  nances,'     without     being     expressly 

named." 


MISCELLANEOUS,    EVIDENCE    AFFECTING    TITLE.  413 

of  way,  the  essential  terms  should  be  fully  stated  in  the  abstract 
and,  for  this  purpose,  the  better  way  is  to  employ  the  exact 
language  of  the  deed. 

§  337.  Party  Wall  Agreements.  In  populous  localities 
party  wall  agreements  are  of  frequent  occurrence,  and,  though 
not  technically  conveyances  of  land,  their  legal  effect  is  to 
give  to  each  of  the  parties  an  easement  on  the  other's  land 
which  becomes  appurtenant  to  their  several  estates  and  passes 
to  their  respective  assignees  by  any  mode  of  conveyance  that 
may  be  effectual  to  transfer  the  land  itself.  While  the  au- 
thorities are  not  altogether  harmonious  with  respect  to  the  legal 
effect  of  covenants  and  agreements  providing  for  the  construc- 
tion of  party  walls  between  adjacent  proprietors,  the  decided 
weight  of  authority  fully  establishes  the  propositions  above 
stated,  and  an  agreement  under  the  hands  and  seals  of  the 
parties,  containing  mutual  covenants  and  stipulations  made 
binding  on  their  respective  heirs  and  assigns,  will,  when  duly 
delivered  and  acted  upon,  create  cross-easements  in  the  re- 
spective owners  of  the  adjacent  lots  with  which  the  covenants 
in  the  agreement  will  run,  so  as  to  bind  all  persons  succeeding 
to  the  estates  to  which  such  easements  are  appurtenant.22  Pur- 
chasers from  such  parties  take  w7ith  constructive,  if  not  actual, 
notice  of  the  agreement,  and  are  presumed  to  have  assumed 
the  burdens  as  well  as  the  benefits  which  are  incident  to  it.23 
"  We  concede,"  says  Mulkey,  J.,  "  the  general  doctrine,  that 
where  the  relation  of  landlord  and  tenant  does  not  exist,  only 
such  covenants  as  are  beneficial  to  the  estate  will  run  with 
the  land ;  but  we  do  not  regard  the  doctrine  as  applicable  to 
cases  where  adjacent  proprietors  have  so  contracted  as  to 
create  mutual  easements  upon  each  other's  estates,  and  entered 
into  covenants  with  respect  to  the  same.     The  new  relation 

22  Hart  ?•.  Lyon,  90  N".  Y.  663;  Dorsey  V.  R.  R.  Co..  58  111.  65; 
Thompson  v.  Curtis,  28  Iowa,  229;  Rindge  v.  Baker,  57  N.  Y.  209;  Rog- 
Standish  v.  Lawrence,  111  Mass.  ers  v.  Sinsheimer,  50  N.  Y.  OKI; 
111.  Hart  V.  Lyon,  90  N.  Y.  66.1;  Thomp- 

23  Roche  v.   Ullman,   104   111.   11;  son  V.  Curtis,  28  Iowa,  229. 
Main    v.    Cumston,    98    Mass.    317; 


414:  ABSTEACTS    OF    TITLE. 

thus  created  being  of  an  intimate  character,  involving  recipro- 
cal duties  with  respect  to  each  other's  estates,  may  be  regarded 
as  an  equivalent  for  the  absence  of  tenure,  so  as  to  give  effect 
to  all  covenants  without  regard  to  whether  they  are  beneficial 
or  onerous."  24  The  abstract  should  disclose  all  the  material 
facts.     An  example  is  appended: 


Hiram  Thompson 

with 

Jared  B.  Lake. 


Party   Wall  Agreement. 

Dated,  etc. 

****** 


Recites,  that  first  party  is 
the  owner  of  the  following  described  land  [describing  same] 
and  that  second  party  is  the  owner  of  certain  land  adjoining 
same  described  as  [describing  same]  and  that  said  first  party 
proposes  to  erect  on  his  said  land  a  brick  building,  and  is 
desirous  of  having  the  wall  between  the  two  above  described 
lots  built  one-half  on  each  of  of  said  lots  for  their  mutual 
benefit,  and  that  second  party  has  assented  to  same,  on  condi- 
tion that  he  shall  have  the  right  of  using  the  said  waU  as 
hereinafter  expressed. 

And  said  parties  covenant  and  agree  to  and  with  each  other 
as  follows: 

Said  second  party  agrees  that  if  first  party  shall  build  at 
any  time  a  partition  wall,  he  may  erect  and  maintain  one- 
half  of  same  on  his,  second  party's  land  [state  conditions  if 
any]  and  may  enter  on  same  with  workmen  and  materials; 
and  further  agrees  that  whenever  he  shall  make  use  of  same, 
he,  or  It  is  heirs  and  assigns,  will  pay  to  said  first  party  one- 
half  of  the  whole  cost  of  said  partition  wall. 

Said  first  party  agrees  that  second  party,  his  heirs  and  as- 
signs, may  use  said  partition  wall  for  the  benefit  of  any  build- 
ing he  may  hereafter  erect  or  place  on  his  said  land,  provided 
he  does  not  cut  into  said  wall  beyond  his  own  half  thereof,  and 
pays  the  price  stipulated  above. 

24  Roche  v.  Ulhnan,  104  111.  11. 


MISCELLANEOUS    EVIDENCE    AFFECTING    TITLE.  415 

.  Signed  by  both  parties,  and  acknowledged  by  them  August 
1,  1879. 

§  338.  Letters.  For  a  large  variety  of  matters  relating 
to  interests  in  land,  and  sales  and  conveyances  of  such  interests, 
which  by  law  are  not  required  to  be  under  seal  or  attested  by 
any  solemnity,  epistolary  correspondence,  notes  and  memo- 
randa, are  competent  evidence.  This  is  particularly  the  case  in 
regard  to  trusts,  agreements  and  conditions  of  sale,  and  some- 
times in  supplying  missing  information  relative  to  descents, 
etc.  Hence,  it  is  not  uncommon  to  find  letters  of  record  re- 
lating to  or  concerning  interests  in  land.  A  contract  for  the 
sale  of  land  made  by  letter  correspondence  between  the  parties 
is  valid  and  will  be  enforced,  if  the  consideration  to  be  paid, 
and  the  time  of  payment,  and  description  of  the  property 
appear  sufficiently  certain  to  enable  a  court  to  make  a  decree.25 
Where  a  person  acquires  title  to  land  in  trust  for  another,  and 
writes  him  a  letter  showing  clearly  that  he  holds  the  same  in 
trust,  this  will  be  sufficient  to  manifest  the  trust  as  required 
by  the  statute  of  frauds.20  The  abstract  of  a  letter  consists 
of  little  else  than  its  recitals. 

§  339.  Affidavits.  In  abstracting  the  proceedings  of 
courts,  in  matters  relating  to  title,  affidavits  will  occasionally 
be  met  with,  but  as  a  rule  they  are  of  such  a  nature  that  their 
contents  are  immaterial  to  the  examination  and  they  may  be 
disposed  of  in  a  single  line  and  frequently  passed  without  no- 
tice. There  is,  however,  another  class  of  affidavits,  resorted 
to  by  conveyancers  under  a  choice  of  difficulties,  which  fre- 
quently figure  on  the  records  and  in  the  abstract.  These  are 
the  ex  parte  sworn  statements  of  individuals  respecting  some 
question  raised  by  the  examination,  usually  relating  to  deaths, 
marriages,  births,  etc.,  concerning  which  no  other  or  better 
evidence  can  be  found.  Family  records  are  not  universal,  nor 
even  where,  as  is  the  custom  of  many  of  the  States,  a  record  of 

25Neufville    v.    Stewart,    1    Hill,  26  Moore  v.  Pickett,  62  111.  158. 

166;    Firth    v.   Lawrence,    1    Paige, 
434. 


416  ABSTRACTS    OF    TITLE. 

births,  deaths  and  marriages  is  kept  by  proper  officers,  can 
the  requisite  information  be  always  obtained.  When  such  is 
the  case  resort  must  be  had  to  the  next  best  and  most  available 
testimony,  which  is  usually  supplied  by  the  affidavit  of  some 
person  setting  forth  his  knowledge  of  the  matters  under  inquiry. 
Such  an  instrument,  it  is  true,  possesses  no  legal  validity,  and 
not  being  made  under  the  sanction  of  a  court,  or  in  any  legal 
proceeding,  is  not  strictly  evidence  for  any  purpose,27  yet  being 
usually  all  that  can  be  adduced,  it  has  been,  as  it  were,  by 
common  consent  of  the  profession,  adopted  as  evidence  in  the 
examination  of  titles  and  the  testimony  taken  as  corroborative 
of  general  reputation,  concurrent  possession,  etc.28  Such  af- 
fidavits, though  possessing  no  legal  efficacy,  should  yet  be  at- 
tended with  the  same  solemnities  and  formalities  that  are 
required  in  affidavits  for  use  in  court. 

Ordinarily  where  an  affidavit  is  required,  and  the  statute 
does  not  designate  the  particular  officer  before  whom  the  act 
may  be  performed,  it  may  be  made  before  any  officer  having 
general  authority  under  the  statute  to  administer  and  certify 
oaths.29  No  legal  rules  can  apply  to  affidavits  of  this  nature, 
except  inferentially,  but,  so  far  as  the  same  may  apply,  they 
should  be  construed  by  the  same  standard  as  affidavits  in  legal 
proceedings.30  The  contents  of  an  affidavit  may  be  shown  in 
this  manner: 


Affidavit 

by 

William   0.  Jones. 


Subscribed   and   sworn    to 
Aug.  k,  1883. 

Recorded  Aug.  8,  1883. 
Booh  119,  page  220. 
Venue,  Cook  County,  Ills. 


Recites  that,  affiant  was  well  acquainted  with  Robert  Simp- 
son, the   identical  person  named  as  grantor  in  a  deed  from 

27  Quinn   v.   Rawson,   5   111.   App.  29  Dunn  v.  Ketchum,  3S  Cal.  93; 

130.  Wood  v.  Bank,  9  Cow.  194. 

2S  Lee  on  Abstracts,  215;   Taylor  30  An  affidavit  is  simply  a  deela- 

on  Titles,  136.  ration   on    oath,    in    writing,    sworn 


MISCELLANEOUS    EVIDENCE    AFFECTING    TITLE.  417 

Robert  Simpson  to  Walter  Scott,  dated  June  1,  1879,  and  re- 
corded June  2,  1879,  in  Book  52,  page  521  of  the  records  of 
Cook  County,  Ills.,  as  document  2,110,  and  that  at  the  date  of 
said  deed  said  Robert  Simpson,  to  the  knowledge  of  affiaid, 
was  an  unmarried  man. 

Jurat  by  "  William  Black,  Notary  Public."  No  Notarial 
seal  of  record.     No  other  designation  of  officer. 

§  340.     Continued  —  General    Requisites  —  Sufficiency. 

It  is  usual,  though  not  necessary,  for  the  affiant  to  subscribe 
the  affidavit,  but,  in  the  absence  of  positive  requirements,  an 
affidavit  which  appears  by  jurat  and  signature  of  an  officer 
thereto  to  have  been  duly  sworn  to,  is  sufficient.31  On  the 
other  hand,  if  the  officer  fails  to  sign  the  jurat  the  affidavit 
is  invalid.32  An  affidavit  relied  upon  as  evidence  of  facts  must 
allege  the  facts  positively.  Averring  them  to  exist  "  as  affiant 
believes  "  proves  nothing.33  The  venue  is  generally  regarded 
as  a  material  fact  in  all  affidavits,  yet  courts  have  exhibited 
great  leniency  in  this  particular  and  it  has  been  held,  that  not- 
withstanding the  instrument  is  without  venue  yet  if  it  is  sub- 
scribed by  an  officer  duly  empowered  to  administer  and  certify 
oaths,  it  will  be  presumed  that  the  oath  was  taken  only  in  the 
county  where  the  officer  was  authorized  to  act.34 

§  341.  Unrecorded  Evidence.  A  loose  and  dangerous 
habit  prevails  with  many  examiners,  of  incorporating  in  their 
examinations  evidences  of  facts  not  disclosed  by  the  records. 
This  is  often  the  case  with  respect  to  affidavits,  releases,  etc., 
the  examiner  usually  putting  such  unrecorded  matter  in  the 
shape  of  a  note,  and  stating:  "Mr.  Blank  has  this  day  ex- 
hibited to  us  an  affidavit  by  Wm.  Parsons,  of  Providence,  R.  L, 

to   by   a   party  before   some   person  32  Morris    V.    State,   2    Tex.    App. 

who   has   authority   under   the    law  502. 

to  administer  oaths,  and  need  not  33  Thomson  v.   Higginbotham,   18 

be  in  any  particular  form:    Harris  Kan.   42;    Murphy    V.    McGrath,   79 

V.  Lester,   80  111.   307.  111.  594. 

31  Turpin  v.  Road  Co.,  48  Ind.  45;  34  Hertig  V.  People,  159  111.  237. 
Cappock  v.  Smith,  54  Miss.  640. 
27 


418  ABSTRACTS    OF    TITLE. 

wherein  lie  states  that  John  Jones  was  a  bachelor  and  that  he 
died  at  Providence,  R.  L,  unmarried,"  etc.  But  this  is  the 
mildest  form,  for,  in  an  abstract  now  before  the  writer,  made 
by  a  responsible  firm,  is  the  full  abstract  of  an  instrument  in- 
serted at  the  request  of  their  client,  and  which  they  state  in  a 
foot-note,  is  "not  recorded  in  Blank  County,  Ills."  Under  no 
consideration  should  this  ever  be  done  except  in  the  solitary 
case  of  titles  emanating  from  the  government.  Where  the  ex- 
aminer possesses  reliable  data,  procured  from  the  only  authentic 
sources,  the  general  land  offices  of  the  government,  statutes,  etc., 
this  is  not  only  permissible  but  should  be  done  as  a  matter  of 
course.  In  all  other  cases,  if  the  client  deems  his  evidence  of 
sufficient  importance  to  be  inserted  in  the  abstract,  it  should 
first  be  filed  for  record  in  the  offices  of  registration  where  it 
will  be  properly  covered  by  the  examiner's  certificate  of  search. 


CHAPTER  XXII. 


MORTGAGES. 


§  342. 

Nature  of  mortgages. 

§  359, 

343. 

Different     kinds     of     mort- 

gages. 

.  360, 

344. 

The  equity  of  redemption. 

361 

345. 

Rights  of  mortgagor. 

346. 

Mortgages  as  affected  by  es- 

362 

toppel. 

363 

347. 

Merger. 

364, 

348. 

Equitable  mortgages. 

365, 

349. 

Vendor's  liens. 

366, 

350. 

Mortgages  proper. 

351. 

Statutory  forms. 

367, 

352. 

Uncertainty  or  error  of  de- 

scription. 

368, 

353. 

Covenants  in  mortgages. 

369, 

354. 

Effect  of  special  covenants. 

355. 

Special      stipulations      and 

370, 

conditions. 

371, 

356. 

Effect  of  informality. 

372, 

357. 

Purchase  money  mortgages. 

373, 

358. 

Mortgage  of  the  homestead. 

Mortgage  of  after-acquired 
property. 

Record  of  mortgages. 

Notice  imputed  from  pos- 
session. 

Re-records. 

Trust  deeds. 

Power  of  sale. 

Assignment. 

Operation  and  effect  of  as- 
signments. 

Formal  requisites  of  assign- 
ments. 

Release   and   satisfaction. 

Form  and  requisites  of  re- 
lease. 

Release   by  trustees. 

Marginal  discharge. 

Foreclosure. 

Proof  of  title  under  fore- 
closure. 


§  342.  Nature  of  Mortgages.  A  mortgage,  as  defined  by 
Chancellor  Kent,  is  a  conveyance  of  an  estate  by  way  of  pledge 
for  the  security  of  a  debt,  to  become  void  on  the  payment  of  it.1 
The  term  "  mortgage  "  has  a  technical  signification  in  law,  and 
when  used  in  legal  proceedings  as  descriptive  of  a  written  in- 
strument, must  be  taken  and  construed  according  to  its  technical 
legal  import.     An  equity  of  redemption  is  an  essential  ingre- 


14  Kent  Com.  136;  Marvin  V. 
Titeworth,  10  Wis.  320;  Cooper  V. 
Whitney,  3  Hill,  95.  Any  instru- 
ment   of    conveyance    that    on     its 


face  purports  to  be  given  to  secure 
a   payment,   is  merely  a   mortgage: 

Cowles  v.  Marble,  37  Mich.  158. 


419 


420  ABSTKACTS    OF    TITLE, 

client  and  is  always  implied,  even  though  no  defeasance  is 
expressed  in  the  instrument  itself.2 

A  mortgage,  in  form,  purports  to  convey  a  present  legal 
estate  to  the  mortgagee,  liable  to  be  defeated  only  by  perform- 
ance of  stipulated  conditions,  and  so  it  was  long  held  that  the 
legal  effect  of  the  instrument  was  to  vest  title  in  the  mortgagee, 
subject  only  to  the  expressed  condition  or  proviso,3  and  the 
mortgagor's  right  to  regain  his  estate,  after  condition  broken, 
which  was  by  application  to  a  court  of  chancery,  was  called 
"  the  equity  of  redemption."  The  modern  doctrine  is,  how- 
ever, that  a  mortgage  is  but  a  lien  on  land,  by  way  of  security 
for  the  debt,  the  legal  title  remaining  in  the  mortgagor,  subject 
only  to  the  lien  of  the  mortgage,  and  that  the  "  equity  of  re- 
demption "  is  a  legal  right.4  The  right  of  a  mortgagee  to 
hold  the  mortgaged  premises  as  security  for  his  debt  is  not  an 
estate  in  land  and  passes  only  by  an  assignment  of  the  debt.5 

§  343.  Different  Kinds  of  31  ort gages.  Conveyances  for 
the  security  of  a  debt  or  the  protection  of  creditors,  may  be 
divided  into  three  classes.  The  first  includes  mortgages  prop- 
erly so  called,  being  conveyances  from  debtor  to  creditor,  ex- 

2  Walton    v.    Cody,    1    Wis.,  420;  4  Vason    v.    Ball,     56     Ga.    268 
Peugh  v.  Davis,  96  U.  S.  332;  Wing  Wing     V.     Cooper,     37     Vt.      169 
v.    Cooper,    37    Vt.    169;    Bearss    v.  Fletcher    v.    Holmes,    32    Ind.    497 
Ford,    108   111.    16.     "Once  a  mort-  Carpenter   v.    Bowen,   42   Miss.   28 
gage,  always  a  mortgage,"  is  a  uni-  Woods  v.   Hildebrand,  46  Mo.  284 
versal  rule  in  equity,  and  no  agree-  Astor  v.  Hoyt,  5  Wend.  602.     This 
ment   in   a    mortgage   to   change    it  was    originally    the    equitable    doe- 
into   an    absolute   conveyance    upon  trine,    established    to    prevent    the 
any    condition    or    event    whatever,  hardships  springing  by  the  rules  of 
will   be    allowed   to    prevail:    Clark  law    from    a    failure    in    the    strict 
V.  Henry,  2  Cow.  324.  performance    of    the    conditions    at- 

3  Croft  V.  Bunster,  9  Wis.  503 ;  tached  to  the  conveyance,  and  to 
Drayton  V.  Marshall,  1  Rice's  Eq.  give  effect  to  the  just  intent  of  the 
(S.  C.)  373;  Stewart  v.  Barrow,  7  parties  in  contracts  of  this  descrip- 
Bush  (Ky.),  368.  This  doctrine  lion,  but  has  gradually  been 
still  prevails   in   a   few   States,   and  adopted  by  the  courts  of  law. 

in   a   modified   form   in  others ;    as,  5  Mack   V.   Wetzlar,   39   Cal.   247. 

after   condition    broken    or   default,  This  would  seem  to  be  generally  true 

the  legal  title  is  held  to  pass  to  the  even   in  those   States  which   regard 

mortgagee:   Johnson  v.  Houston,  47  a  mortgage   as   a   substantive   form 

Mo.  227;  Fuller  v.  Eddy,  49  Vt.  11.  of  conveyance. 


MOETGAGES.  421. 

pressed  to  be  by  way  of  a  pledge  or  security  for  the  payment 
of  an  indebtedness,  or  for  the  indemnification  of  the  grantee 
against  a  particular  loss,  and  containing  a  clause  of  defeasance 
upon  the  performance  of  the  stipulated  conditions.  To  this 
division  also  belongs  that  class  of  mortgage  securities  techni- 
cally known  as  "  Trust  Deeds,"  wherein  the  debts  are  specified 
and  the  creditors  named  or  described,  but  because  of  their  large 
number,  or  to  allow  greater  freedom  in  the  transfer  of  the 
evidences  of  the  indebtedness,  or  from  other  circumstances  mak- 
ing a  conveyance  directly  to  them  less  convenient,  the  deed  is 
made  to  a  mortgagee  who  combines  the  office  of  trustee,  the 
creditors  standing  in  the  position  of  cestuis  que  trust.® 

The  second  division  consists  of  conveyances  which  are  abso- 
lute in  form,  but  being  intended  as  security  for  debt  only, 
courts  of  equity  will  give  effect  to  the  intention  of  the  parties 
whatever  may  be  the  form  of  the  conveyance,  and  treat  the 
transaction  as  a  mortgage,  except  as  against  the  rights  of 
bona  fide  purchasers  or  other  intervening  equities.7  These  are 
known  as  "  equitable  mortgages,"  and  being  usually  dependent 
on  undisclosed  intention,  are  to  be  treated  and  considered  in 
the  abstract  only  according  to  their  manifest  legal  import. 

The  third  division  contemplates  all  deeds  of  trust  or  assign- 
ments for  the  payment  of  creditors  generally,8  the  mortgagee 
in  such  case  representing  the  rights  of  the  mortgagor  only.9 
Mortgages  may  assume  a  variety  of  shapes  and  their  identity 
become  almost  concealed,  but  the  fact  of  security  is  always 
sufficient  to  furnish  an  indication  of  their  true  character.10 

6  Hurley  v.  Estes,  6  Neb.  386 ;  French  v.  Burns,  35  Conn.  359 ; 
Turner    r.    Watkins,    31    Ark.    429.       Shays  v.  Norton,  48  111.   100. 

A  trust  deed   executed  to   secure   a  8  Bank  v.  Lanahan,  45  Md.  396. 

debt   does   not   vest   in    the    trustee  9  Spademan    v.    Ott,    65    Pa.    St. 

the   legal   title   to   the    land,   which  131. 

can   only   be   taken   away   from   the  iri  A      penal     bond     to     reconvcy 

grantor     by     foreclosure     or     other  lands     has     been     held     to     be     a 

legal    process   in    substantial    accord  mortgage:  Reynolds  v.  Scott,  Brayt. 

'.villi    the    deed:     Ingle    V.    Culbert-  (Vt.)   75.     So  of  a  deed  wit li  a  bond 

43   Iowa,   265.  for   reconveyance:    Wing  v.   Cooper, 

7  Sweet  r.  Mitchell.  15  Wis.  641;  37    Vt.     109;    but    otherwise    upon 


422  ABSTRACTS    01    TITLE. 

§  344.  The  Equity  of  Redemption.  The  estate  remain- 
ing in  the  mortgagor  is  popularly,  but  erroneously,  called  an 
"  equity  of  redemption,"  retaining  the  name  it  had  when  the 
legal  estate  was  vested  in  the  mortgagee,  and  the  right  to  re- 
deem existed  only  in  equity.  Although  a  misnomer,  it  does 
not  mislead.  The  term  is  convenient  and  its  meaning  well 
understood.  The  legal  estate  remains  in  the  mortgagor  and 
is  subject  to  dower  and  curtesy ;  the  lien  of  judgments ;  may 
be  sold  on  execution;  and  may  be  the  subject  of  mortgage  and 
sale,  the  same  as  any  other  estate  in  lands,  while  the  mortgagee 
has  but  a  lien  upon  the  land  as  a  security  for  his  debt,  and 
the  same  is  not  liable  to  his  debts,  nor  subject  to  any  of  the 
incidents  of  an  estate  in  lands.11  The  mortgagor  retains  and 
is  possessed  of  an  estate  in  the  land  in  virtue  of  his  former 
and  original  right,  and  there  is  no  change  of  ownership.  So 
far  as  the  entire  estate  is  concerned,  there  is  but  one  title 
and  this  is  shared  between  the  mortgagor  and  mortgagee,  the 
one  being  the  general  owner  and  the  other  having  a  lien  which, 
upon  a  foreclosure  of  the  right  to  redeem,  may  ripen  into  an 
absolute  title,  their  respective  parts,  when  united,  constituting 
one  title.12     The  possession  of  the  mortgaged  premises  in  no 

facts  stated:  Rich  V.  Doane,  35  Vt.  of  the  mortgagee,  and  liable  to  be 
125.  So  also  of  a  deed  with  a  stipu-  evicted  without  notice  to  quit, 
lation  that  title  shall  not  vest  until  The  mortgagee,  in  such  case,  has  a 
the  purchase  money  is  paid:  Pugh  V.  right  of  entry  which  he  may  peace- 
Holt,  27  Miss.  461.  And  generally  ably  assert  without  notice  and 
any  conveyance  expressed  to  be  to  without  action;  or  he  may.  with  or 
secure  a  payment:  Cowles  v.  Mar-  without  notice  to  quit,  bring  eject- 
ble,  37  Mich.  15S;  Bearss  v.  Ford,  ment,  and  may  recover  possession 
108  111.  16;  Parks  v.  Hall,  2  Pick.  of  the  land  and  damages  for  use 
(Mass.)  211.  and  occupation  after  notice  to  quit, 
1 1  Odell  V.  Montross,  68  N.  Y.  and  if  no  notice,  then  after  the 
499;  2  Wash.  Real  Prop.  152;  Gor-  service  of  the  writ,  and  this  either 
ham  r.  Arnold,  22  Mich.  247 ;  White  against  the  mortgagor  or  Ins  as- 
V.  Rittenmeyer,  30  Iowa,  268.  This  signee:  Mason  V.  Gray,  36  Vt.  311; 
is  the  general  doctrine,  yet  in  some  Collame  v.  Langdon,  29  Vt.  32; 
States  it  is  still  held  that,  after  the  Welsh  v.  Phillips,  54  Ala.  39. 
expiration  of  the  law  day,  the  mort-  12  Odell  v.  Montross,  68  N.  Y. 
gagor  or  one  occupying  his  position,  499. 
is  considered  as  tenant  at  sufferance 


MORTGAGES.  423 

way  affects  the  right  of  the  one  to  redeem  or  the  other  to 
foreclosure.18 

A  party  taking  a  mortgage  on  land  pending  a  bill  to  fore- 
close a  prior  mortgage  or  lien,  will  be  bound  by  the  decree  and 
sale  made  in  the  pending  suit  the  same  as  if  made  a  party  to 
the  bill  to  foreclose,  and  will  be  bound  to  redeem  from  such 
sale  within  the  period  allowed  by  law.  If  he  fails  to  do  so 
his  equity  of  redemption  will  be  barred,14  and  his  rights  under 
his  mortgage  will  be  extinguished  and  lost. 

§  345.  Rights  of  Mortgagor.  The  mortgagor,  possessing 
the  legal  as  well  as  the  equitable  title,  may  perform  any  valid 
act  relative  to  the  property,  and  make  any  contract  with  ref- 
ence  to  the  title,  subject  to  the  lien  of  the  mortgage,  but  he 
can,  it  seems,  do  no  act  which  shall  be  prejudicial  to  his  mort- 
gagee's interests  or  essentially  change  the  legal  character  of 
the  land.  Hence,  no  dedication  to  public  use  of  portions  of 
a  parcel  of  land,  made  by  the  general  owner  after  giving  a 
mortgage  upon  it,  can  affect  the  lien  of  the  mortgage,  and  a 
purchaser  at  a  sale  on  foreclosure  will  take  title  free  of  the 
dedication.15 

§  346.  Mortgages  as  Affected  by  Estoppel.  It  is  a  well 
settled  principle  of  law,  that  if  one  who  has  no  title  to  lands 
nevertheless  makes  a  deed  of  conveyance,  with  warranty,  and 
afterward  himself  purchases  and  receives  the  title,  the  same 
will  vest  immediately  in  his  grante,  who  will  hold  the  land  in 
virtue  of  his  deed  with  warranty,  as  against  such  grantor,  by 
estoppel.  In  such  case  the  estoppel  is  held  to  bind  the  land, 
and  create  an  interest  in  it.  The  grantor,  being  at  the  same 
time  the  warrantor  of  the  title  which  he  has  assumed  the  right 
to  convey,  will  not  be  heard  to  set  up  a  title  in  himself  against 
his  own  prior  grant,  nor  to  say  that  he  had  not  the  title  at  the 
dato  of  the  conveyance,  or  that  it  did  not  pass  to  his  grantee 
in  virtue  of  his  deed.16 

13  Parsons  v.  Noggle,  23  Minn.  J.  Eq.  354;  Walker  v.  Summers,  9 
328.  W.  Va.  533. 

14  Pratt  v.  Pratt,  Ofi  111.   184.  ic  Teft  V.  Munson,  57  N.  Y.  1)7; 
IB  Hague  v.  West  Hoboken,  23  N.       Work   V.    Wellend,    13    N.    H.    389; 


424  ABSTRACTS   OV   TITLE. 

The  doctrine  is  equally  well  settled  that  the  estoppel  binds 
not  only  the  parties,  but  all  privies,  whether  of  blood,  law,  or 
estate ; x  7  and  in  such  case,  the  title  is  treated  as  having  been 
previously  vested  in  the  grantor,  and  as  having  passed  imme- 
diately upon  the  execution  of  his  deed,  by  way  of  estoppel. 
So  where  a  party  makes  a  mortgage  with  express  or  implied 
warranty  of  title,  he  thereby  becomes  estopped  from  disputing 
that,  at  the  date  of  the  mortgage,  he  had  the  title  and  conveyed 
it;  and  this  estoppel  applies  equally  to  all  persons  to  whom 
such  party  may  make  subsequent  conveyances,  by  deed,  after 
he  has  obtained  a  title.  Such  subsequent  grantees  are  estopped 
from  denying  that  the  original  grantor  had  title  to  the  land 
at  the  date  of  the  mortgage,  and  he  must,  therefore,  for  every 
purpose  as  against  his  grantees,  be  treated  as  having  had  the 
title  at  that  date.18  I\or  does  this  doctrine  at  all  militate 
against  the  rule,  that  the  record  of  a  conveyance  made  by  one 
having  no  title  is  a  nullity,  and  constructive  notice  to  lo  one. 

When  a  mortgage  is  in  the  statutory  form  it  is  equivalent 
to  one  containing  all  the  usual  covenants  of  title,  and  subse- 
quently acquired  titles  inure  to  the  benefit  of  the  mortgagee.19 

§  347.  Merger.  One  of  the  most  perplexing  incidents  of 
title  that  can  come  to  the  notice  of  the  examiner  in  connec- 
tion with  mortgages,  is  that  which  forms  the  caption  to  this 
section,  and  as  it  is  impossible,  in  the  brief  limits  of  this 
work,  to  enter  into  any  extended  discussion  of  the  subject, 
only  passing  reference  can  be  made  to  it.  The  doctrine,  as 
formulated  by  the  earlier  decisions,  is  that  whenever  a  greater 
and  a  less  estate  unite  in  the  same  person,  without  any  in- 
termediate estate,  the  lesser  is  merged,20  and  where  the  legal 
and  equitable  estates  meet  and  unite  in  the  same  person  without 
an  intervening  interest  outstanding  in  a  third  person,  the  equi- 

Jackson  V.  Bull,   1  Johns.  Cas.   81;  Elder  v.  Derby,  98  111.  228;  R.  &  M. 

White  v.  Patten,  24  Pick.  324;  Pike  R.  P.  Co.  v.  Trust  Co.,  49  III.  331. 
v.  Garvin,  29  Me.  183.  19  Elder  v.  Derby.  98  111.  22S. 

ivTeft  r.  Munson,  57  N.  Y.  97.  20  Jackson    v.    Roberts,    1    Wend. 

isTcft  r.  Munson,  57  N.  Y.  97;  478;  James  v.  Morey,  2  Cow.  246. 
White     v.    Patten,    24    Pick.     324; 


MORTGAGES.  425 

table  is  merged  in  the  legal  estate,  the  latter  alone  subsisting. 
Thus,  a  conveyance  by  the  mortgagor  to  the  mortgagee  extin- 
guishes the  mortgage.21 

Later  decisions  have  greatly  modified  this  rule  and  it  is  now 
held,  that  where  two  estates  meet  as  above  described,  a  merger 
does  not  necessarily  follow,  but  will  depend  upon  the  intent 
and  interest  of  the  parties,  and  where  it  becomes  necessary  to 
advance  the  ends  of  justice,  the  two  estates  will  be  kept  sep- 
arate ;  thus,  a  deed  from  a  mortgagor  to  a  mortgagee,  intended 
as  additional  security  only,  and  not  as  a  satisfaction  of  the 
mortgage,  will  not  merge  the  mortgage  in  the  greater  estate 
so  as  to  give  priority  to  another  mortgage  which  is  a  second 
lien.22  So,  also  in  the  absence  of  a  special  agreement  to  that 
effect,  the  taking  of  a  new  mortgage,  from  the  same  party  and 
on  the  same  property,  will  not  merge  or  extinguish  a  prior 
one.23  The  rule,  as  first  stated,  though  inflexible  at  law,  is 
in  equity  controlled  by  the  express  or  implied  intention  of  the 
party  in  whom  the  interests  or  estates  unite,  and  the  mortgage 
interest  will  in  equity  be  held  to  have  merged  the  fee,  or 
otherwise,  according  to  the  actual  or  presumed  intention  of 
the  mortgagee.24 

With  respect  to  merger  no  general  rule  can  be  laid  down,  for 
the  question  will  depend  in  each  case  upon  the  interests  and 
intent  of  the  parties,  and  the  demands  of  justice  and  equity.20 
The  most  rigid  investigation  must  be  made  by  counsel  wherever 

21  Jackson  v.  Devitt,  6  Cow.  310.  gage,     afterward,     through     mesne 

22  Huebsch  v.  Schnell,  81  111.  281.  conveyances,    obtains    title    to    the 

23  Christian  v.  Newberry,  61  Mo.  land,  he  thereby  becomes  vested 
446.  with  the  estates  of  both  mori 

24  Aiken    V.    R.    R.    Co.,    37    Wis.  and   mortgagee;    the    owner    <>f   the 
469;    Morgan   v.   Hammet,   34   Wis.  mortgage   having  acquired   the   pri- 
512;  Powell  v.  Smith,  30  Mich.  451 ;  mary   fund   for   its   payment,   which 
Waterloo  Bank  V.  Elmore,  52  Iowa,  is  of  value  equal    to  the  mori 
541;  Tower  r.  Divine,  37  Mich.  443.  he  thereby  occupies  the   position   <>f 

-■"•  Franklyn  v.  Ilayward,  61  How.  one  who  has  effected   ;■    striel    fore- 

l'r.  (N.  Y.)  43.    Where  a  mortgagor  closure     and     the     mortgage     debt 

the    morgaged    premises,    sub-  must  be  regarded  as  paid:   Lilly   r. 

jeet   ' 'i   the   mortgage,   and   a  third  Palmer,  51   111.  331. 
party,    having  purchased    the   mort- 


426  ABSTRACTS    OF   TITLE. 

an  apparent  merger  occurs  in  the  title,  as  the  record  does  not 
impart  notice  of  merger,  or  of  any  other  fact  which  depends 
alone  on  the  intention  of  the  parties,  or  other  extrinsic  evidence, 
and  if  any  one  takes  a  conveyance  upon  the  assumption  that  a 
former  mortgage  to  his  grantor  has  been  merged  in  a  subse- 
quent conveyance  of  the  fee,  he  does  so  at  his  peril.20 

§  348.  Equitable  Mortgages.  It  is  an  established  doc- 
trine that  a  court  of  equity  will  treat  a  deed  absolute  in  form, 
as  a  mortgage  when  it  is  executed  as  security  for  a  loan  of 
money,  for  the  court  looks  beyond  the  terms  of  the  instrument 
to  the  real  transaction,  and  when  that  is  shown  to  be  one  of 
security,  and  not  of  sale,  it  will  give  effect  to  the  actual  con- 
tract of  the  parties.27  Such  a  deed  carries  with  it  all  the 
incidents  of  a  mortgage,  and  the  rights  and  obligations  of  the 
parties  to  the  instrument  are  the  same  as  if  it  had  been  subject 
to  a  defeasance  expressed  in  the  body  thereof,  or  executed 
simultaneously  with  it.2S  It  is  a  further  established  doctrine 
that  an  equity  of  redemption  is  inseparably  connected  with  a 
mortgage ;  that  is  to  say,  so  long  as  the  instrument  is  one  of 
security  the  borrower  has  in  a  court  of  equity  a  right  to  redeem 
the  property  upon  payment  of  the  loan,  and  this  right  can  not 
be  waived  or  abandoned  by  any  stipulation  of  the  parties  made 
at  the  time,  even  if  embodied  in  the  mortgage.  This  is  a 
doctrine  from  which  a  court  of  equity  never  deviates.  "  Its 
maintenance  is  deemed  essential  to  the  protection  of  the  debtor, 
who,  under  pressing  necessities,  will  often  submit  to  ruinous 
conditions,  expecting  or  hoping  to  be  able  to  repay  the  loan 

20  Or.  &  Wash.  Trust  Co.  v.  Shaw,  was  intended  to  be  a   mortgage  or 

5  Sawyer   (C.  Ct.),  336.  security   merely,    is   recognized   and 

27  Peugh  v.  Davis,  96  U.  S.  332 ;  applied    for   the    reason,    that    such 

Klein   V.   McNamara,   54   Miss.    90;  evidence  is  received   not   to   contra- 

Carr  V.  Carr,  52  N.  Y.  251 ;  Shays  v.  diet  an  instrument  of  writing,  but 

Norton,  4S  111.  100;  Turner  r.  Kerr,  to  prove  an  equity  superior  to  it: 

44  Mo.  429;  Moore  r.  Wade,  8  Kan.  Saunders   v.    Stewart,    7    Nev.    200; 

380;   Kerr  v.   Agard,   24   Wis.   378.  Wilcox  v.  Bates,  26  Wis.  405. 
The  rule  that  parol  proof  is  admis-  2S  Odell    v.    Montrose,    68    N.    Y. 

sible  to  show  that  a  conveyance  of  499. 
Teal  estate,  absolute  upon  its   face, 


MORTGAGES.  4  - 1 

at  its  maturity  and  thus  prevent  the  conditions  from  being  en- 
forced and  the  property  sacrificed."  29 

In  view  of  these  statements  how  is  counsel  to  determine, 
on  perusal  of  the  abstract,  what  are  and  what  are  not  mort- 
gages, if  all  the  instruments  appear  absolute  on  their  face  ? 
There  is  but  one  answer  to  the  question.  He  can  not.  The 
legal  import  of  an  absolute  conveyance  is  that  it  carries  the 
fee,30  and  any  contradiction  of  its  apparent  effect  must  arise 
from  extrinsic  evidence.  This  latter  counsel  can  not  know, 
nor  is  he  expected  to  have  such  knowledge.  The  record  rarely 
furnishes  any  clue  to  the  true  character  of  this  class  of  con- 
veyances, the  facts  governing  their  equitable  nature  resting 
entirely  in  parol,  hence  questions  of  this  kind  can  seldom  arise 
in  the  preparation  of  abstracts  and  only  incidentally  in  passing 
upon  titles.  The  examiner  can  judge  of  the  legal  sufficiency 
and  effect  of  instruments  only  as  they  are  presented  on  the 
record.31  Subsequent  purchasers  for  value,  without  notice, 
will  be  protected  by  the  record,  and  where  one  in  possession 
of  land,  under  a  conveyance  absolute  on  its  face,  sells  the  same, 
his  grantee,  without  notice  that  his  vendor's  deed  was  but  a 
mortgage,  will  hold  the  property  free  from  any  equity  of  re- 
demption ;  32  and  even  though  a  court  of  equity  afterward  de- 
cides that  the  conveyance  was  in  fact  a  mortgage,  and  that  the 

29  Field,  J.,  in  Peugh  v.  Davis,  the  grantee  to  recover  possession 
96  U.  S.  332;  Clark  v.  Henry,  2  of  the  property:  Richards  v.  Craw- 
Cow.  324;  and  see  Walton  v.  Cody,  ford,  50  Iowa,  4D4.  See,  Edwards 
1  Wis.  420;  Bearss  v.  Ford,  108  v.  Trumbull,  50  Pa.  St.  509;  Shaw 
111.    16.  V.   Wiltshire,  65  Me.  485.     This  re- 

30  A  conveyance  of  the  legal  title  suit  always  follows  if  the  instru- 
to  secure  the  payment  of  money  ment  be  recorded  in  the  record  of 
differs  from  a  statutory  mortgage  deeds  and  not  of  mortgages:  Brown 
in  that  the  legal  title  passes  to  the  v.  Dean,  3  Wend.  (N.  Y.)  208. 
grantee,  the  grantor  reserving  the  31  It  is  the  settled  policy  of  the 
right  in  equity  to  redeem.  This  law  to  give  security  to,  and  confi- 
right,  however,  may  become  barred  dence  in,  titles  to  the  landed  es- 
l>y  the  statute  of  limitations,  and  tates  of  the  country  which  appear 
when  so  barred  that  an  action  for  of  record  to  be  good:  MeVey  v. 
affirmative  relief  can  not  be  main-  McQuality,  97  111.  93. 

tamed  thereon,  it  can  not  be  inter-  32  Jenkins  v.  Rosenburg,   105   111. 

posed  as  a  defense  to  an  action  by        157. 


428  ABSTRACTS    OF   TITLE. 

mortgagor  is  entitled  to  his  equity  of  redemption,  yet  the  title 
to  the  property  will  not  be  disturbed,  but  judgment  in  personam 
will  be  given  against  the  mortgagee  for  the  amount  equitably 
due  by  him  to  the  mortgagor.33 

Where  a  lien  on  land  is  expressly  reserved  in  the  deed  con- 
veying such  land,  which  is  duly  recorded,  a  clear  equitable 
mortgage  is  created  of  which  every  one  is  bound  to  take  no- 
tice ;  34  but  something  more  than  a  mere  reservation  of  a  right 
to  purchase,  or  covenant  to  reconvey,  must  be  shown  in  order 
to  convert  a  deed  absolute  on  its  face  into  a  mortgage.35  There 
is  no  positive  rule  that  a  covenant  to  reconvey  shall  be  re- 
garded, either  in  law  or  equity,  as  a  defeasance.  The  owner 
of  lands  may  be  willing  to  sell  at  the  price  agreed  upon,  and 
the  purchaser  may  also  be  willing  to  give  the  vendor  the  right 
to  repurchase,  upon  specified  terms.  Such  a  contract  is  not 
opposed  to  public  policy,  nor  is  it  in  any  sense  illegal.36 

Equitable  mortgages  arising  from  the  deposit  of  title  deeds 
are  not  generally  recognized,37  and  the  common-law  doctrine 
respecting  pledges  of  this  kind  can  not  be  said  to  prevail  in  this 
country. 

§  349.  Vendor's  Liens.  It  has  long  been  settled  that  the 
vendor  of  real  property,  notwithstanding  he  has  conveyed  the 
legal  title,  has  a  lien  on  such  property  for  the  unpaid  purchase 

33  Baugher  v.  Merryman,  32  Md.  321).  So  if  it  be  for  the  perform- 
186;  Jackson  v.  McChesney,  7  Cow.  ance  of  any  other  duty,  such  as 
360;  Grirnstone  V.  Carter,  3  Paige,  maintenance  of  the  grantor  during 
421.  life,    etc.:    Lanfair    V.    Lanfair,    18 

34  Davis    v.    Hamilton,    50    Miss.  Pick.   (Mass.)  299. 

213;   Armentrout's  Exr.  V.  Gibbons,  35  But  see  Peterson  v.   Clark,   15 

30    Gratt.     (Va.)     652;    Dingley    v.  Johns.    (N.  Y.)   205. 

Bank,  57  Cal.  467;  as  where  a  deed  36  Han  ford    v.    Blessing,    80    111. 

contains  a  stipulation  that  no  title  188;  Henly  V.  Hotaling,  41  Cal.  22; 

shall  vest  until  the  purchase  money  Glover  v.  Payn,  19  Wend.  518. 

has   been   paid    (Pugh    v.    Holt,    27  37  Probasco  v.  Johnson,  2  Disney 

Miss.  461;  Austin  V.  Downer,  25  Vt.  (Ohio),  96.    The  registry  of  a  mort- 

558,  or  that  the  deed   shall   be   ab-  gage  is  a  substitute  for  the  deposit 

solute    on    the    payment    of    certain  of  the  title  deeds :  Johnson  v.  Stagg, 

notes,  but  in  default  thereof  to  be  2  Johns.  510. 
void    (Bank  v.  Drummond,   5  Mass. 


MORTGAGES.  429 

money  while  it  remains  in  the  hands  of  the  vendee,  or  vol- 
unteers or  purchasers  with  notice.  This,  however,  applies 
mainly  to  implied  liens,  for  where  there  is  a  distinct  reser- 
vation of  lien  upon  the  face  of  the  deed,  it  has  been  held  to 
constitute  a  specific  charge  upon  the  land  as  valid  and  effectual 
as  a  deed  of  trust  or  mortgage,38  and,  further,  that  the  lien 
being  set  forth  in  the  very  first  link  of  the  vendee's  claim  of 
title,  purchasers  from  him  have  just  as  much  notice  of  it  as 
they  would  have  had  of  a  lien  on  the  land  by  mortgage  or 
trust  deed.39  "  Indeed,"  says  Staples,  J.,  "  it  may  be  a  ques- 
tion whether  a  reserved  lien  is  not  of  a  higher  nature  than 
a  mere  mortgage  security.  In  many  cases  the  mortgage  is 
treated  as  a  mere  incident  to  the  debt,  whereas  the  lien  reserved 
is  an  express  charge  inherent  in  its  nature  upon  the  land  which, 
in  quity,  is  the  natural  primary  fund  for  its  payment."  40 

§  350.  Mortgages  Proper.  A  mortgage  may  be  made  by 
an  absolute  conveyance  with  a  defeasance  back,  but  this  form 
has  never  been  in  general  use  in  the  United  States,  and  is  now 
obsolete.  The  class  of  conveyances  to  which  this  name  is  tech- 
nically applied  consists  of  an  instrument  in  form  purporting 
to  convey  a  present  estate  to  the  mortgagee,  liable  to  be  de- 
feated by  the  performance  of  stipulated  conditions,  and  is 
always  between  the  principals  to  the  transaction.  Where  the 
mortgage  remains  a  valid  and  subsisting  lien,  it  is  advisable 
to  narrate  its  essential  terms  quite  fully,  and  when  followed 
by  foreclosure,  if  other  than  by  suit  in  chancery,  to  relate  with 
minuteness  of  detail  the  power  of  sale  and  other  provisions, 
by  authority  of  which  the  foreclosure  Avas  made.  Where  the 
mortgage  has  been  fully  paid,  satisfied  and  discharged,  there 
exists  no  good  reason  why  it  should  appear  at  all,  any  more 
than  a  judgment  which  has  been  satisfied ;  yet  it  is  the  universal 
custom  of  abstract  makers  to  show,  in  the  regular  course  of 
title,  both  the  mortgage  and  its  subsequent  assignments,  if  any, 

-k  Arrnentro'.it's  Ex'rs  v.  Gibbons,  (Va.)     443;     Hines     v.    Perkins,    2 

30  Gratt.    (Va.  632);   Carpenter  V.  Heisk.    (Term.)    395. 

Mitchell,  54   [11.  126.  40  Coles    v.    Withers,    33    Gratt. 

39Patton     r.     Iloge,     22     Gratt.  (Va.)    186. 


430  ABSTRACTS    OF    TITLE. 

and  the  discharge.  Questions  may  sometimes  arise  that  render 
an  abstract  of  satisfied  liens  convenient  or  material,  jet,  as  a 
*ule,  only  the  briefest  outline  should  be  presented,  sufficient, 
\n  fact,  to  show  the  transaction  and  no  more,  that  confusion 
nay  not  result  from  the  mingling  of  satisfied  and  unsatisfied 
liens.  An  unsatisfied,  unforeclosed  mortgage  may  be  suffi- 
ciently presented  as  follows: 


Richard  Thompson  and 

Elvira,,  his  wife, 

to 

Mortimer  Giddings. 


Mortgage. 

Dated  May  1,  1880. 
Recorded  May  2,  1880. 
Booh  590,  pg.  253. 
To  secure  the  payment  of 
$500.00  in  one  year  from  the  date  hereof,  with  interest  at  six 
per  cent,  per  annum,  evidenced  by  said  Richard  Thompsons 
one  promissory  note  of  even  date  herewith.*1 

Conveys  land  in  Brown  County,  Ills.,  described  as  lot  one, 
in  block  one,  of  the  Village  of  Cherry  Vale,  being  part  of  the 
northeast  quarter  of  section  ten,  town  one  noxih,  of  range  five 
east  of  the  third  Principal  Meridian. 

Power  of  sale  given  on  default  after  thirty  days'  notice.'12 
Homestead  rights  waived. 
Acknowledged  May  1,  1880. 

The  above  sufficiently  designates  the  character  and  effect 
of  an  ordinary  mortgage  between  individuals  before  default 
or  foreclosure,  or  if  followed  by  foreclosure  in  equity.  When 
foreclosed  by  advertisement,  if  the  mortgagee's  deed  is  shown 

41  It  is  the  universal  custom  to  tion  to  pay  the  money  will  not 
witness  the  obligation  of  payment  make  the  instrument  any  less  effect- 
by  a  bond  or  promissory  note,  the  ual  as  a  mortgage,  provided,  of 
mortgage  simply  stipulating  that  course,  that  the  mortgagor  had  the 
if  the   money   be    paid   by   the   day  money. 

named,    the    mortgage    as    well    as  42  When    followed    by   foreclosure 

the  obligation  shall  be  void;  but  it  '    under  the  power,  set  out  the  terms 

may  often  happen  that  no  separate  thereof   fully.     See   the  example   of 

obligation  is  taken,  and  the  absence  foreclosure  of  trust  deed, 
of  a  bond  or  other  express  obliga- 


MORTGAGES.  431 

iu  the  same  examination,  instead  of  the  reference  to  the  power 
of  sale  above  given,  set  out  the  entire  clause  and  accompanying 
conditions.  When  a  foreclosure  by  advertisement  and  sale  fol- 
lows a  mortgage  shown  in  a  former  examination,  or  one  appear- 
ing prior  to  the  commencement  of  the  search,  a  note,  embodying 
the  power  of  sale,  should  be  appended  to  the  abstract  of  the 
mortgagee's  deed,  in  the  same  manner  as  the  example  given  of 
a  trustee's  deed,  to  which  the  reader  is  referred.  Where  the 
mortgage  is  given  by  a  corporation,  married  woman,  person 
under  guardianship  or  other  disability,  a  greater  degree  of 
detail  is  of  course  required,  and  all  special  matter,  relating 
to  capacity,  power  to  act,  character  of  parties,  etc.,  should  be 
shown  as  in  cases  of  absolute  conveyance  by  deed.  So,  also, 
unusual  clauses,  conditions,  stipulations  or  covenants,  tending 
to  shed  light  on  the  transaction,  or  to  limit  or  define  the  nature 
of  the  lien  or  security  given,  must  in  like  manner  be  specifically 
shown.  The  example  given  in  this  section  is  to  be  considered 
rather  as  a  suggestion  than  as  a  form,  as  are  many  other  ex- 
amples in  this  book,  and  whenever  any  of  the  above  mentioned 
incidents  occur  they  should  find  appropriate  mention. 

A  mortgage,  after  judicial  foreclosure,  although  in  some 
sense  merged  in  the  decree,  remains  a  muniment  of  title  which 
passes  to  the  purchaser  at  the  mortgage  sale,  to  be  looked  to, 
not  only  for  the  purpose  of  ascertaining  the  time  at  which  the 
mortgage  lien  attached,  but  also,  in  the  absence  of  express 
directions  in  the  decree  limiting  the  estate  to  be  sold,  the  quan- 
tity and  quality  of  the  estate  conveyed  by  way  of  mortgage.43 

§  351.  Statutory  Forms.  As  in  case  of  absolute  deeds, 
statutory  forms  for  mortgages  are  now  prescribed  in  many 
States,  but,  like  such  deeds,  from  their  meagerness  of  detail, 
have  not  come  into  very  general  use  in  many  localities.  The 
statutory  words  of  conveyance  and  pledge  are  "  mortgage  and 
warrant  "  and  in  all  abstracts  of  such  mortgages  the  operative 
words  should  be  inserted  as  they  appear  in  the  original.  The 
word  "  mortgages  "  is  sufficient,  under  the  statute,  to  create  a 

43  Vallejo   Land   Assoc,    r.   Vicra,   48  Cal.  572. 


432  ABSTRACTS    OF    TITLE. 

mortgage  in  fee,  while  the  addition  of  the  words  "  and  war- 
rants "  carries  the  legal  import  and  effect  of  full  covenants  of 
seizin,  right  to  convey,  freedom  from  incumbrances,  quiet  en- 
joyment and  general  warranty. 

§  352.  Uncertainty  or  Error  of  Description.  The  ob- 
servations heretofore  made 44  in  regard  to  uncertain  or  er- 
roneous descriptions  in  deeds  are  all  applicable  to  mortgages, 
for  the  policy  of  the  law  requires  that  they  give  definite  infor- 
mation, not  only  as  to  the  debt  secured,  but  as  to  the  property 
mortgaged  as  well.45  Material  omissions,  or  even  misdescrip- 
tion, will  not  invalidate  the  instrument,  where  other  adequate 
elements  of  identification  exist,46  but  purchasers  without  notice 
will  be  bound  only  by  the  description  furnished  by  the  mort- 
gage.47 

It  is  a  rule  of  general  observance  that  a  mortgage,  to  be 
effective,  must  in  some  way  describe  and  identify  the  indebt- 
edness it  is  intended  to  secure.  Literal  accuracy  in  describ- 
ing the  debt  is  not  required,  but  the  description  must  be  correct 
as  far  as  it  goes  and  must  be  full  enough  to  define  the  obligation 
with  reasonable  certainty,  or,  it  must  direct  attention  to  other 
sources  where  correct  information  concerning  the  debt  may  be 
obtained.  In  every  event  it  must  be  of  such  a  character  as 
net  to  mislead  cr  deceive,  either  as  to  the  nature  of  the  debt 
or  its  amount.4S  If  the  mortgage  is  given  to  secure  an  ascer- 
tained debt,  then  the  amount  of  the  debt  should  be  stated;  if 
it  is  intended  to  secure  a  debt  not  ascertained  such  data  should 
be  furnished  respecting  the  debt  as  would  put  any  one  in- 
terested in  the  inquiry  upon  the  track  leading  to  the  discovery. 
If  it  is  given  to  secure  an  existing  or  future  liability,  the  foun- 
dation of  such  liability  should  be  set  forth.49 

44  See  "  Errors,  Omissions  and  47  Disque  V.  Wright,  49  Iowa, 
Defects,"  page   182.                                      538;    Simmons  v.   Fuller,   17   Minn. 

45  Herman   v.   Deming,   44    Conn.       485. 

124;    Simmons  v.   Fuller,   17   Minn.  48  New  v.   Sailors,   114  Ind.  407; 

485;    Galaway   V.   Malchou,    5   Neb.  Pettibone  v.  Griswold,  4  Conn.  158; 

285;  Murphy  v.  Hendricks,  57  Ind.  Bullock    v.    Battenhousen,    108    111. 

593.  36;  Curtis  v.  Flynn,  46  Ark.  70. 

46  Slater  v.  Breese,  36  Mich.  77;  49  Bullock  v.  Battenhousen,  108 
Boon  v.  Pierpont,  28  N.  J.  Eq.  7.  111.  36. 


MORTGAGES.  433 

§  353.  Covenants  in  Mortgages.  As  mortgages  are  now 
drawn  personal  covenants  are  not  usually  inserted,  but  whenever 
they  are  inserted  they  have  the  same  operation  as  in  deeds  of 
bargain  and  sale.  A  brief  allusion  to  the  covenants  of  a 
mortgage  may  be  profitably  made,  and  where  the  words  of 
grant  which  imply  covenants  are  employed,  and  no  express 
covenants  are  inserted  in  the  instrument,  such  words  should 
always  be  stated  as  in  case  of  deeds.  The  words  "  grant,  bar- 
gain and  sell  "  are  sufficient  to  create  an  estoppel,  and  any 
subsequent  interest  the  mortgagor  may  acquire  in  and  to  the 
mortgaged  premises  will  pass  by  the  mortgage  or  any  sale 
that  may  be  made  pursuant  to  its  terms.50 

It  is  a  rule,  however,  in  ordinary  cases  of  foreclosure,  that 
the  title  ordered  to  be  sold  is  only  the  title  which  was  held  by 
the  mortgagor  at  the  date  of  the  mortgage,51  and  when  a  mort- 
gage containing  no  covenant  of  warranty  has  been  foreclosed, 
and  the  relation  of  mortgagor  and  mortgagee  has  been  extin- 
guished by  a  sale  of  the  mortgaged  lands,  the  former  is  under 
no  duty  to  protect  the  title  of  the  purchaser,  nor  is  he  pre- 
cluded from  subsequently  acquiring  and  claiming  under  an  out- 
standing and  paramount  title.52  "  The  purchaser  is  presumed 
to  know  the  conditions  of  the  title  which  he  purchases,"  says 
Andrews,  J.,  "  and  if  it  is  defective  his  bid  is  regulated  in 
view  of  such  defect.  If  the  premises  bring  enough  to  satisfy 
the  mortgage  debt  it  would  be  inequitable  to  allow  him  to  claim 
an  interest  subsequently  acquired  by  the  mortgagor,  and  which 
he  did  not  purchase  and  was  no  part  of  the  consideration  of 
the  sale.  If  there  is  a  deficiency,  that  becomes  a  personal 
charge  against  the  party  bound  to  pay  the  debt,  in  favor  of  the 
creditor.  Different  considerations  would  apply  when  the  mort- 
gage contained  covenants  of  warranty.  In  that  case  the  con- 
sideration paid  would  represent  the  value  of  the  land  as  war- 
ranted, and  the  mortgagor  would  be  estopped  from  setting  up 

so  Gibbons    v.    Hoag,    95    111.   45;  52  Jackson    V.    Littell,    56    N.    Y. 

Teft  v.  Munson,  57  N.  Y.  97.  108. 

51  Kreiclibaum  v.  Melton,  49  Cal. 
51. 

28 


434  ABSTRACTS    OF    TITLE. 

an  after  acquired  title,  against  which  he  covenanted  in  the 
mortgage."  53 

§  354.  Effect  of  Special  Covenants.  In  addition  to  the 
ordinary  covenants  of  title  and  warranty,  a  series  of  special 
covenants  are  found  in  mortgages  which  do  not,  as  a  rule, 
directly  affect  title.  These  covenants  are  sometimes  annexed 
to  conditions  and  stipulations,  but  may  be  separate  from  them 
and  from  the  subject  to  which  the  stipulations  allude.  Of  this 
nature  is  the  covenant  to  keep  the  mortgaged  property  insured 
for  the  benefit  of  the  mortgagee.  Such  a  covenant  creates  a 
specific  equitable  lien  upon  the  insurance  money,  which  is  valid 
as  against  the  creditors  of  the  mortgagor.  The  mortgage  being 
recorded,  the  covenant  acts  upon  the  insurance  as  soon  as  af- 
fected, runs  with  the  land,  and  furnishes  notice  to  third  per- 
sons-; and  no  subsequent  assignment  or  other  act  can  affect  the 
rights  of  the  mortgagee.  It  is  not  necessary  that  the  policies 
be  assigned,  nor  that  the  mortgagee  select  the  companies,  and 
any  acts  of  the  mortgagor  without  the  consent  of  the  mortgagee 
will  not  defeat  the  effect  of  the  covenant.54 

§  355.  Special  Stipulations  and  Conditions.  Many 
mortgagees  insist  upon  a  number  of  special  stipulations  and 
conditions  in  mortgages  accepted  by  them,  and  frequently  they 
are  of  such  a  nature  that  they  can  not  be  consistently  passed 
by  the  examiner  without  notice. 

The  stipulation  for  insurance  for  the  mortgagee's  benefit, 
being  intended  to  afford  security  supplementary  to  and  con- 
nected with  the  mortgage,  and  to  keep  the  mortgaged  property 
itself  so  far  intact  as  a  means  of  security  as  to  perpetuate  the 
safety  of  the  mortgagee's  interest  in  case  the  buildings  should 
burn,  is  in  equity  a  sort  of  adjunct  to  the  mortgage,  and  is 
binding  on  the  mortgagor  and  all  others  who  may  succeed  to 
his  rights  with  notice.55 

53  Jackson    v.    Littell,    5G    N.    Y.  question  was  raised  by  the  assignee 

108.     And  see,  Vallejo  Land  Assoc.  in  bankruptcy  of  the  mortgagor. 
V.   Viera,   48   Cal.    572.  55  Miller  v.  Aldrich,  31  Mich.  408. 

r>4  In  Re  Sands'  Ale  Brewing  Co.,  A  failure  in  this  respect  constitutes 

3    Biss.    175.     In    this    matter,    the  such   a    default   as   will  justify  the 


MORTGAGES.  435 

The  stipulation  that  in  case  of  a  default  in  the  payment 
of  interest  the  principal  shall  immediately  become  due  and 
payable,  and  that  the  mortgagee  may  immediately  proceed  to 
foreclose,  is  an  essential  part  of  the  contract  and  may  be  en- 
forced,56 and  the  same  rule  applies  to  the  similar  stipulation 
relative  to  the  non-payment  of  taxes.57 

A  provision  that  the  mortgagee,  upon  default,  shall  be  en- 
titled to  the  immediate  possession  of  the  premises  is  generally 
regarded  as  valid,  and  of  this  provision  subsequent  purchasers 
and  incumbrancers  are  charged  with  notice.58 

A  stipulation,  whereby  the  mortgagee  assumes  and  agrees  to 
pay  a  prior  mortgage  on  the  premises,  does  not  impose  upon 
the  mortgagee  a  personal  liability  for  the  prior  mortgage  debt, 
which  can  be  enforced  against  him  by  the  prior  mortgagee,  for 
the  stipulation  in  such  cases  is  not  a  promise  made  by  the  mort- 
gagee to  the  mortgagor  for  the  benefit  of  the  prior  mortgagee, 
but  is  a  promise  for  the  benefit  of  the  mortgagor  only;  it  is 
to  protect  his  property  by  advancing  money  to  pay  his  debt.59 
In  this  respect  it  differs  from  a  similar  stipulation  contained 
in  an  absolute  conveyance. 

All  stipulations  which  are  essential  parts  of  the  contract,  or 
which  tend  to  induce  foreclosure  before  the  expressed  time  of 
the  maturity  of  the  debt,  particularly  when  the  mortgage  con- 
tains a  power  of  sale  by  advertisement,  should  be  stated  or 
definitely  alluded  to. 

§  356.  Effect  of  Informality  in  Mortgages.  Mort- 
gages, or  conveyances  by  way  of  security  in  the  nature  of  mort- 
gages, are  seldom  void  for  informality  unless  the  informality 
or  omission  goes  to  the  groundwork  of  the  instrument,  and  a 

mortgagee  in  selling  under  the  pow-  58  Felino  v.  Lumber  Co.,  G4  Neb. 

er    in    the    mortgage:     Walker    v.  335;    and   see,   Frink   V.   LeRoy,   49 

Cockey,  38  Md.  75.  Cal.  314. 

56  Gulden    v.     O'E-yrne,     7     Phil.  59  Garnsey   V.    Rogers,    47    N.    Y. 

(Pa.)    93;   Ma]  com   v.  Allen,  49  N.  233.     The    same   rule   applies    to    a 

Y.  448;  Meyer  v.  Graeber,  19  Kan.  deed    absolute   on    its    face,    but,    in 

10.");   Cook   l?.  Clark,  68  N.  Y.   178.  fact,  intended  as  a  mortgage. 

•r>?  Slant-lifts   V.   Norton,    11    Kan. 
218. 


436  ABSTRACTS    OF    TITLE. 

mortgage  or  trust  deed,  otherwise  complete  but  lacking  in  some 
formal  particular,  though  it  may  be  denied  legal  effect,  will 
yet  be  enforced  in  equity  as  an  equitable  mortgage,  and  this 
protection  will  extend  to  the  assignee  as  well  as  to  the  original 
mortgagee.60  The  rule  has  been  held  to  apply  in  case  of  a  trust 
deed  which  omitted  the  name  of  the  trustee ;  61  and  to  a  mort- 
gage which  did  not  purport  to  be  sealed ;  62  and  where  the 
seal  had  been  omitted ;  63  where  the  instrument  was  imper- 
fectly witnessed,  as  where  there  was  but  one  witness,  and  the 
statute  required  two ;  64  to  imperfectly  acknowledged  instru- 
ments ; 65  and  even  to  the  want  of  an  acknowledgment.66 
Whenever  a  mortgage  is  sufficient  as  between  the  parties  it 
will  affect  all  third  persons  who  have  actual  knowledge  or  no- 
tice of  its  existence,67  and  purchasers  with  such  notice  will 
take  subject  to  the  equities  created  by  such  defective  mort- 
gage.68 

§  357.  Purchase  Money  Mortgages.  A  mortgage  ex- 
pressed to  be  for  the  whole  or  a  part  of  the  purchase  money 
of  the  mortgaged  property  should  be  so  described  in  the  ab- 
stract, as  such  mortgages  stand  upon  a  somewhat  different  foot- 
ing from  other  conveyances  by  way  of  security.  The  pecul- 
iar qualities  of  a  purchase  money  mortgage  are  derived  from 
statutes,  under  which  it  becomes  a  lien  upon  the  entire  estate 
of  the  mortgagor  in  the  land,  freed  from  any  contingent  claim 
of  the  wife,  whether  she  be  a  party  to  the  mortgage  or  not;  6G 
neither  will  she  be  a  necessary  party  to  a  suit  for  foreclosure 
of  a  purchase  money  mortgage,  in  the  execution  of  which  she 

GOMcQuie   v.    Peay,    58    Mo.    56;  66  Black  v.  Gregg,  58  Mo.  565. 

McClurg  V.  Phillips,  49  Mo.  31.  67  Gardner  v.  Moore,  51  Ga.  268; 

61  McQuie  v.  Peay,  58  Mo.  56.  Sanborn  V.  Robinson,  54  N.  H.  239; 

62  Jones  v.  Brewer,  58  Me.  210.  Wilson  V.  Reuter,  29  Iowa,   176. 

63  Harrington  v.  Fortner,  58  Mo.  68  Gardner  v.  Moore,  51  Ga.  268. 
468;  Van  Riswick  V.  Goodhue,  50  69  Fletcher  v.  Holmes,  32  Ind. 
Md.  57.  497;  Amplilet  v.  Hibbard,  29  Mich. 

6  4  Gardner  v.  Moore,  51  Ga.  268;  298;  Thompson  v.  Lyman,  28  Wis. 
Sanborn  r.  Robinson,  54  N.  II.  239.       266. 

65Haskill  r.  Sevier,  25  Ark.  152; 
Zeigler  v.  Hughes,  55  HI.  288. 


MORTGAGES.  437 

Lad  not  joined,  if  such  suit  be  brought  in  the  lifetime  of  the 
husband.70 

So,  too,  a  purchase  money  mortgage,  executed  contem- 
qoraneously  with  the  deed  of  purchase,  will  take  precedence 
over  the  lien  of  a  prior  judgment  against  the  mortgagor.71 

The  fact  in  itself  is  important,  but  it  may  be  stated  in  very 
brief  terms,  which  is  usually  done  by  a  parenthetical  clause  in 
connection  with  the  recital  of  the  indebtedness ;  thus : 

To  secure  the  payment'  of  $4,000.00  (part  purchase  money) 
evidenced  by  four  notes,  etc. 

The  same  fact  may,  if  so  desired,  be  stated  more  fully,  by 
a  distinct  allusion  to  the  purchase  money  clause  in  the  body 
of  the  instrument,  in  this  manner: 

This  mortgage  is  given  (it  is  stated)  to  secure  the  payment 
of  (a  portion  of)  the  unpaid  purchase  money  for  said  above 
described  premises. 

§  358.  Mortgages  of  the  Homestead.  The  jealous  care 
with  which  the  law  guards  the  homestead  is  never  more  fully 
exemplified  than  in  the  safeguards  and  restraints  which  it  has 
placed  upon  all  attempts  to  incumber  it;  and  in  all  convey- 
ances of  property,  whether  by  deed  or  mortgage,  the  character 
of  the  premises,  considered  in  relation  to  its  use  and  occu- 
pancy, is  an  inquiry  never  to  be  omitted.  In  some  States  no 
valid  mortgage  of  the  homestead  can  be  effected ;  72  in  a  ma- 
jority of  the  others  such  mortgage  is  effectual,  only  when  there 
has  been  a  special  release  and  waiver  of  the  homestead  right ;  73 
while  in  all  the  States,  the  free  and  voluntary  assent  of  the 

to  Fletcher    v.    Holmes,    32    Ind.  Masterson,  59  Ga.  835;  Campbell  V. 

497.  Elliott,  52  Tex.   151. 

71  Stewart  v.  Smith,  36  Minn.  82;  73  Trustees  v.  Beale,  98  111.  248; 
Cake's  Appeal,  23  Pa.  St.  186.  Browning  v.    Harriss,   99    111.    456; 

72  Van  Wickle  v.  Landry,  29  La.  Balkum  v.  Wood,  58  Ala.  642. 
Ann.    330;    and    see    Moughon    v. 


438  ABSTRACTS    OF    TITLE. 

wife,  the  mortgagor  being  a  married  man,  is  a  condition  prece- 
dent to  the  vesting  of  the  lien.74  Where  the  statute  prescribes 
formalities  relative  to  acknowledgment,  such  formalities  be- 
come matters  of  substance,  and  their  due  observance  is  in  all 
cases  necessary ;  75  but  where  no  particular  mode  is  prescribed, 
any  joint  action,  properly  acknowledged,  will  probably  satisfy 
the  requirement  of  the  voluntary  signature  and  assent  of  the 
wife.76  Where  the  statute  requires  an  express  waiver,  this 
may  be  shown  briefly,  in  all  properly  executed  mortgages,  by  a 
simple  recital  of  the  fact ;  as, 

Homestead  rights  waived, 

while  the  absence  of  any  words  indicative  of  such  intention 
may,  with  propriety,  be  also  noted. 

The  only  exception  to  the  rules  above  stated  is,  when  the 
mortgage  is  given  to  secure  all  or  a  portion  of  the  unpaid  pur- 
chase money,  and  in  such  case  they  all  yield  to  the  superior 
equity  of  the  vendor's  lien.77  In  examinations  of  title  an  in- 
quiry in  pais  is  always  raised  by  mortgages  purporting  to  be 
executed  by  the  husband  only,  as  well  as  when  the  joint  action 
of  husband  and  wife  is  shown,  but  unaccompanied  by  any  ex- 
pression indicative  of  release  or  waiver  of  homestead,  when 
such  expressed  waiver  is  a  statutory  essential,  unless  the  mort- 
gage in  terms  purports  to  be  a  security  for  the  purchase  price. 

§  359.  Mortgage  of  After-acquired  Property.  As  to 
the  effect  of  deeds  and  mortgages  of  property  to  which  the 
grantor  or  mortgagor  has  no  present  legal  title,  and  which  con- 

74  Long  v.  Mostyn,  65  Ala.  543 ;  edgment :  Best  r.  Gholson,  89  111. 
Anderson  r.  Culbert,  55  Iowa,  233 ;       465. 

Griffin   v.   Proctor,   14   Bush    (Ky.),  76  Forsyth  v.  Preer,  62  Ala.  443. 

571;  Sherrid  v.  Southwiek,  43  Mich.  Local    statutes    must    decide    these 

515;     Chambers    v.    Cox,    23    Kan.  matters;  the  laws  and  decisions  of 

393.  other  States  shed  but  little  light  on 

75  Mash  V:  Russell,  1  Lea  (Tenn.),  questions  of  this  character. 

543;  Balkum  v.  Wood,  58  Ala.  642;  77  Fletcher    v.    Holmes,    32    Ind. 

Warner  r.  Crosby,  89  111.  320.     The  497;  Amphlet  v.  Hibbard,  29  Mich, 

fact  that  the  deed  recites  a  waiver  298;    Thompson  V.  Lyman,  28  Wis. 

does  not  help  a  defective  acknowl-  266. 


MORTGAGES.  439 

tain  no  covenants  or  other  words  creating  an  estoppel,  there 
seems  to  be  much  diversity  of  judicial  opinion,  though  the  au- 
thorities are  in  the  main  harmonious  in  declaring  equitable 
interests  and  estates  to  be  proper  subjects  of  conveyance  by 
mortgage.78  The  question  frequently  arises  in  regard  to  mort- 
gages of  incipient  or  inchoate  rights  under  the  United  States 
land  laws,  and  such  mortgages  have  usually  been  upheld  by 
the  State  courts,  particularly  when  the  transaction  was  shown 
to  be  one  of  good  faith,79  and,  when  congress  has  imposed  no 
positive  restrictions,  the  right  is  usually  accorded  to  one  right- 
fully in  possession  of  the  soil  to  make  any  valid  contract 
concerning  the  title  to  same  predicated  upon  the  hypothesis 
that  he  may  thereafter  lawfully  acquire  it.80  So,  too,  where 
a  railroad  company  made  a  mortgage  on  the  property  "  then 
belonging  to  or  thereafter  to  be  acquired  "  by  said  company, 
with  covenants  for  further  reasonable  and  necessary  convey- 
ances as  to  subsequently  acquired  property,  it  was  held  that 
the  mortgage  became  a  valid  lien  upon  any  interest  in  real  as 
well  as  personal  estate  subsequently  acquired  by  the  company 
for  the  use  of  its  road,  even  superior  to  a  vendor's  lien  for  the 
purchase  money  of  the  lands.81 

Courts  of  equity  will  enforce  specific  execution  of  contracts, 
and  give  relief  in  numerous  cases  of  agreements  relating  to 
lands  and  things  in  action,  or  to  contingent  interests  or  ex- 
pectancies, upon  the  maxim  that  equity  considers  that  done, 
which,  being  agreed  to  be  done,  ought  to  be  done,82  and  in 
furtherance  of  this  principle,  where  no  rule  of  law  is  infringed, 
and  the  rights  of  third  persons  are  not  prejudiced,  will,  in 

78  Bank  of  Greensboro  v.  Clapp,  R.  Co.,  24  Wis.  551 ;  and  see  Mor- 
76  N.  C.  482.  rill   v.   Noyes,   5G   Me.   458.        Such 

79  Woodbury  v.  Dornian,  15  Minn.  mortgages     from     an    exception    to 
338;    Wallace    v.    Wilson,    30    Mo.  the  general   rule  that  property  not 
335;    Clark  v.  Baker,   14  Cal.   615;  in  existence  can  not  be  conveyed. 
Reasoner  v.  Markley,   25  Kan.   635.  82  Sillers  V.  Lester,  48  Miss.  513; 

8"  Lamb  v.  Davenport,  18  Wall.  Stevens  v.  R.  R.  Co.,  45  How.  (N. 
307.  Y.  Pr.)    104. 

81  Pierce    v.    Milwaukee,    etc.,    R. 


440  ABSTKACTS    OF    TITLE.. 

proper  cases,  give  effect  to  mortgages  of  subsequently  acquired 
property.83 

§  3 GO.  Record  of  Mortgages.  Mortgages  come  within 
the  provisions  of  the  recording  acts,  and  impart  notice  in  like 
manner  as  deeds.84  They  are  governed  in  this  respect  by  the 
same  general  rules  as  affect  other  conveyances,  while  in  sev- 
eral States  they  are  further  regulated  in  regard  to  priority,  etc., 
by  special  laws.  The  registry  of  a  mortgage  is  notice  only  to 
the  extent  of  the  sum  specified  in  the  record,85  and  of  the  prop- 
erty therein  described, SG  and  intending  purchasers  are  only 
chargeable  with  notice  of  such  facts  as  the  record  discloses,  and 
not  of  undisclosed  intent.87 

If  a  mortgage  is  given  to  secure  an  ascertained  debt,  the 
amount  of  the  debt  should  be  stated ;  and  if  it  is  intended  to 
secure  a  debt  not  ascertained,  such  data  should  be  given  re- 
specting it  as  will  put  any  one  interested  in  the  inquiry  upon 
the  track  leading  to  a  discovery.  If  it  is  given  to  secure  an 
existing  or  a  future  liability,  the  foundation  of  such  liability 
should  be  set  forth.  Without  this,  a  subsequent  bona  fide  pur- 
chaser, with  no  actual  knowledge  or  notice  of  the  facts,  is  not 
chargeable  with  notice  of  the  amount  secured.88 

As  between  two  mortgages,  the  first  recorded  is  the  prior 

83  Beall  v.  White,  94  U.   S.  382;  86  Simmons    v.    Fuller,    17    Minn. 

Rice  v.  Kelso,  57  Iowa,  115.  485;    Galway    v.    Malcliou,    5    Neb. 

s 4  Johnson    v.     Stagg,    2     Johns.  2S5;    White    v.    McGarry,    2    Flip. 

510;   Rice   v.  Dewey,  54   Barb.    (N.  (C.  Ct.)   572. 

Y.)     455;     Hickman    v.    Perrin,    6  87  Disque    V.    Wright,    49    Iowa, 

Coldw.     (Tenn.)     135;     Shannon    V.  538;    Galway    v.    Malchou,    5    Neb. 

Hall,    72    111.    354;    Van    Aken    V.  285;    Herman  V.  Deming,  44   Conn. 

Gleason,  34  Mich.  477.  124. 

S5  Beekman    v.    Frost,    18    Johns.  88  So     held     where     the     record 

544;  North  v.  Belden,  13  Conn,  376.  merely  stated  that  the  grantor  had 

Even  though  there  has  been  a  mis-  on  the  same  date  as  the  mortgage 

take     in     recording:       Bullock     v.  made  his  promissory  note,  payable, 

Battenhousen,  108  111.  28;  Lowry  V.  etc.,    without    giving    the    amount: 

Davis,   69   Ind.   589.     But   it   would  Bullock    v.    Battenhousen,    108    111. 

seem    that    the    recorder    would    be  28;   Hart  v.   Chalker,   14   Conn.'  77. 

liable   in   damages  to  any  one  who  But    see    North    v.    Knowlton,    23 

might  suffer  from  the  error:  Lowry  Fed.   Rep.    163,   where   en  semble  a 

V.  Davis,  69  Ind.  589.  contrary   doctrine   is   indicated. 


MORTGAGES.  441 

lien,89  and  where  a  mortgage  and  a  deed  of  conveyance  of  the 
same  property  are  made  at  the  same  time,  the  mortgage,  if 
recorded  first,  will  take  precedence  of  the  deed.90 

The  rights  of  the  mortgagee  are  fixed  when  he  places  his 
mortgage  on  record,  and  the  subsequent  destruction  of  the  rec- 
ord, will  not,  it  seems,  extinguish  or  destroy  the  notice  af- 
forded by  registration,  nor  injuriously  affect  the  rights  of  the 
mortgagee,91  while  as  between  the  original  parties,92  and  their 
heirs,93  the  mortgage  will  still  be  valid  and  effective  although 
unrecorded. 

§  361.  Notice  Imparted  from  Possession.  If  the  real 
owner  of  property  allows  it  to  stand  recorded  in  the  name  of 
another,  by  a  title  translative  of  property,  he  puts  it  in  the 
power  of  that  other  to  create  a  valid  mortgage  on  it ;  94  yet  one 
who  takes  a  mortgage  from  the  record  owner  of  lands,  which 
are  in  the  notorious  and  exclusive  possession  of  another,  is 
bound  to  inquire  as  to  the  claims  or  interest  of  the  person  so 
in  possession,  and  is  chargeable  with  whatever  he  might  have 
learned  by  reasonable  inquiry,  notwithstanding  he  has  searched 
the  records  and  found  no  deed.95  Hence,  it  is  always  well 
for  counsel,  in  framing  an  opinion  of  title,  to  specifically  call 
attention  to  the  rights  of  persons  in  possession  if  other  than  the 
record  owner. 

§  362.  Re-records.  A  re-record  of  a  mortgage  is  treated 
the  same  as  a  re-record  of  a  deed ;  bare  mention  is  sufficier  t 
provided  the  two  records  show  a  literal  conformity,  otherwise 
they  are  to  be  regarded  as  independent  instruments.  Re-rec- 
ords of  mortgages,  like  re-records  of  deeds,  are  frequently  made 

89  Ripley  v.  Harris,  3  Biss.  199;  0.3  McLaughlin  V.  Ihmsen,  85  Pa. 
Odd   Fellows  Saw   Bank   v.  Banton,       St.  364. 

46  Cal.  603;   Van  Aken  v.  Gleason,  04  Hunter  v.  Buckner,  29  La.  Ann. 

34  Mich.  477.  604;   Shepard  r.  Shepard,  36  Mich.  ' 

90  Odgen    r.     Walkers,     12    Kan.       173. 

282.  or.  School    District    v.    Taylor,    19 

oi  Shannon  v.  Hall,  72  111.  354.  Kan.  2S7 ;  and  see  Parsell  V.  Thayer, 

;,2Cavanaugh  v.  Peterson,  47  Tex.  39  Mich.  467. 

197. 


442  ABSTEACTS    OF    TITLE. 

to  correct  errors  of  the  former  record,  and  in  every  instance  the 
two  should  be  carefully  compared. 

When  it  satisfactorily  appears  that  the  instrument  under 
consideration  is  a  re-record  it  should  be  placed  immediately 
after  the  abstract  of  the  first  record,  whenever  such  a  course 
is  practicable,  and  may  be  shown  somewhat  as  follows : 


Mortgage. 

Dated,  etc. 

*  * 


Robert  Dennis  and 
Frances,  his  wife, 
to 
David  K.  Tone. 
Apparently  a  re-record  of   the   preceding   mortgage,  signed 
by  both  Dennis  and  wife,  with  an  additional  certificate  of  ac- 
knowledgment of  both,  dated  June  2,  1898. 

§  363.  Trust  Deeds.  Trust  deeds  in  the  nature  of  a 
mortgage  were  once  in  very  common  use,  but  the  changes  pro- 
duced by  the  abolition  of  the  common  law  doctrine  of  uses 
and  trusts  and  the  limitation  of  powers,  have  now  confined 
them  to  a  few  States,  and  even  in  those  States,  under  the  influ- 
ence of  recent  legislation,  mortgages  are  to  some  extent  taking 
their  place.  In  general  effect  a  trust  deed  of  the  character 
now  under  consideration  is  the  same  as  a  mortgage,  and  like 
a  mortgage  is,  in  equity,  a  mere  security  for  the  payment  of 
money,  or  for  the  performance  of  certain  undertakings  by  the 
grantor.  It  is  simply  an  incident  to  the  debt  which  it  secures, 
and  upon  which  it  depends.96 

The  same  general  principles  are  applicable  to  this  class  of 
conveyances  as  to  other  deeds  intended  only  as  security,  and 
the  chief  feature  which  distinguishes  them  from  mortgages  is, 
that  here  the  conveyance  is  not  made  to  the  creditor  direct, 
but  to  a  trustee  who  holds  a  naked  trust  for  the  benefit  of  the 
legal  holder  of  the  evidence  of  the  indebtedness,  which,  if 
negotiable,  passes  from  hand  to  hand  as  other  commercial 
paper,  the  incident  of  the  lien  following  the  note  to  the  hands 

96  Life  Ins.  Co.  v.  White,  106  111.    67. 


MORTGAGES.  443 

of  the  last  indorsee,  who,  on  default,  may  call  upon  the  trustee 
to  execute  the  trust  according  to  its  terms. 

The  grantor  in  a  trust  deed,  in  declaring  the  trust,  may  mold 
and  give  it  any  shape  he  chooses,  and  he  may  provide  for  the 
appointment  of  a  successor  or  successors  to  the  trustee  upon 
such  terms  as  he  may  choose  to  impose,  but  when  imposed  the 
terms  must  be  pursued,  to  render  the  acts  of  the  successor 
valid.  It  is  alone  by  the  force  of  the  powers  delegated  by  the 
deed  that  the  trustee  can  perform  any  act  with  reference  to 
the  trust  property,  and  in  executing  those  powers  he  must 
strictly  pursue  them,  or  his  acts  will  be  void.97 

An  unexecuted  trust,  if  still  an  existing  lien,  is  treated  in 
the  same  manner  as  mortgages  under  like  conditions.  The  ab- 
stract should  show  the  trustee;  the  successor  in  trust,  if  any 
is  appointed ;  the  cestui  que  trust  if  named ;  98  and  a  general 
description  of  the  indebtedness  as  in  case  of  ordinary  mort- 
gages.    An  illustration  is  herewith  given: 


James  Johnson 
to 
Americus  B.  Melville, 
Trustee. . 


Trust  Deed. 

Dated  June  1,  1882. 

Becorded  June  5,  1882. 

Booh  129.     Page  510. 

To  secure  the  payment  of  $1,000 
and  interest  thereon  at  eight  per  cent,  per  annum,  in  two 
years  from  the  date  hereof,  evidenced  by  said  first  party's  one 
certain  promissory  note,  bearing  even  date  herewith,  and  pay- 
able to  the  order  of  George  W.  Smith  for,  payable  to  his  own 
order  and  by  him  endorsed). 

Conveys  land,  etc.  [here  set  out  the  description  of  the  prop- 
erty conveyed]  in  trust  and  upon  the  conditions  therein  speci- 
fied and  enumerated. 

Power  of  sale  given  on  default  after  thirty  days'  notice. 

97  Equitable  Trust  Co.  v.  Fisher,  the  maker's  own  order  and  after  lie 
100  HI.  189;  Ellis  v.  R.  R.  Co.,  107  has  endorsed  them  they  then  pass  by 
Mass.   12.  mere  delivery.     In  such  case  the  fact 

98  It  is  now  a  very  general  prac-  should  he  noticed  in  the  abstract, 
tice  to  make  the  notes  payable  to 


444  ABSTRACTS    OF    TITLE, 

Homestead  rights  waived. 

Monroe  A.  Fulkerson,  successor  in  trust. 

Acknowledged  June  1,  1882. 

If  followed  by  foreclosure  in  pursuance  of  the  power,  and 
the  trustee's  deed  appears  in  the  same  examination,  insert  the 
power  of  sale  in  full  as  found  in  the  instrument,  immediately 
after  the  description  of  the  property,  thus : 

In  trust,  nevertheless,  that  in  case  of  default  in  the  payment 
of  thfi  note  secured  hereby,  or  any  part  thereof,  according  to 
the  tenor  and  effect  of  said  note,  or  in  case  of  waste  or  non- 
payment of  taxes  or  assessments,  or  neglect  to  procure  or  renew 
insurance  as  hereinafter  provided,  or  in  case  of  the  breach  of 
any  of  the  covenants  or  agreements  herein  mentioned,  then  it 
shall  be  lawful  for  the  said  party  of  the  second  part  or  his  suc- 
cessor in  trust,  on  application  of  the  legal  holder  of  said  promis- 
sory note  (or  either  of  them),  to  enter  upon,  possess,  hold  and 
enjoy  the  above  granted  premises,  and  either  with  or  without 
such  entry  to  sell  and  dispose  of  said  premises,  and  all  right, 
title,  benefit  and  equity  of  redemption  of  said  party  of  the 
first  part,  his  heirs  and  assigns  therein,  at  public  auction,  at 
the  front  door  of  the  court  house  in  Chicago,  Illinois,  or  on 
said  premises,  or  any  part  thereof,  as  may  be  specified  in 
the  notice  of  such  sale,  for  the  highest  and  best  price  th& 
same  will  bring  in  cash,  thirty  days'  previous  notice  of  such 
sale  having  been  given  by  publication  once  in  each  week,  for  four 
successive  weeks,  in  the  Chicago  Legal  News,  or  in  any  newspa- 
per at  that  time  published  in  said  city  of  Chicago,  and  to  make, 
execute  and  deliver  to  the  purchaser  or  purchasers  at  such  sale, 
good  and  sufficient  deed  or  deeds  of  conveyance  for  the  prem- 
ises sold.  *  *  *  *  Which  sale  or  sales  so  made  shall  be 
a  perpetual  bar,  both  in  law  and  ecjuity,  against  the  said  party 
of  the  first  part,  his  heirs  and  assigns  and  all  other  persons 
claiming  the  premises  aforesaid,  or  any  part  thereof,  by,  from, 
through  or  under  said  party  of  the.  first  part  (or  any  of  them). 

Second  party,  with  or  without  re-advertising ,  is  hereby  au- 


MORTGAGES.  445 

thorized  and  empowered  to  postpone  or  adjourn  said  sale  from 
time  to  time  at  his  discretion;  and  also  to  sell  the  said  premises, 
entire,  without  division,  or  in  parcels,  as  he  may  prefer  or  think 
test. 

It  is  agreed  that  in  case  of  default  in  any  of  said  payments 
of  principal  or  interest,  according  to  the  tenor  and  effect  of 
said  note,  or  any  part  thereof,  or  of  a  breach  of  any  of  the 
covenants  or  agreements  herein,  by  the  party  of  the  first  part, 
his  executors,  administrators  or  assigns,  then,  and  in  that  case, 
the  whole  of  said  principal  sum  hereby  secured,  and  the  inter- 
est thereon  to  the  time  of  sale,  may  at  once,  at  the  option  (with- 
out notice  thereof  to  said  party  of  the  first  part,  his  heirs, 
assigns  or  legal  representatives)  of  the  legal  holder  thereof,  be- 
come due  and  payable,  and  the  said  premises  be  sold  in  the 
manner  and  with  the  same  effect,  as  if  the  said  indebtedness 
had  matured. 

First  party  covenants  that  in  case  of  a  sale  and  conveyance 
as  aforesaid,  of  said  premises,  any  deed  or  deeds  of  convey- 
ance made  in  pursuance  of  such  sale  shall  be  prima  facie  evi- 
dence of  the  due  compliance  with  and  performance  of  the  terms, 
conditions  and  requirements  of  this  deed  of  trust,  by  second 
party,  or  his  successor  in  trust  aforesaid,  in  advertising  and 
making  such  sale  and  conveyance,  to  the  extent  of  the  recitals 
contained  in  such  deed  or  deeds. 

§  364.  Power  of  Sale.  The  power  of  sale  contained  in  a 
deed  of  trust  or  mortgage  must  be  strictly  jjursued,99  and  the 
utmost  fairness  must  be  observed  in  its  execution;  but  such 
strictness  and  literal  compliance  should  not  be  exacted  as 
would  destroy  the  power.1  Where  title  is  claimed  through  a 
trustee  or  mortgagee  acting  under  a  power,  a  reasonable  de- 

99  Cranston    V.    Crane,    97    Mass.  the  mortgagee;  and  the  courts  will 

459.                                       .  not      interfere       to       control       the 

l  Waller    v.    Arnold,    71    111.    350.  right,  in  the  ahsence  of  fraud,  or  of 

Parties  to  a  mortgage  may,  by  stip-  some    statutory    regulations    on    the 

illation,    regulate    the    terms    of    a  subject:   Elliott  v.  Wood,  45  N.  Y. 

power    of   sale    of   the    premises    by  71. 


446  ABSTRACTS    OF    TITLE. 

gree  of  detail  is  necessary  in  the  abstract,  which  should  show 
sufficient  of  the  proceedings,  as  evidenced  by  the  trustee's  or 
mortgagee's  deed,  to  indicate  a  substantial  compliance  with 
every  essential  requisite.  When  permitted  by  statute,  the  sale 
of  a  mortgaged  estate,  made  in  pursuance  of  a  valid  power 
given  by  the  owner,  vests  in  the  purchaser  an  estate  in  fee, 
free  from  the  original  condition  and  from  any  right  of  re- 
demption,2 and  the  power,  being  coupled  with  an  interest,  is 
irrevocable,  and  hence  may  be  exercised  even  after  the  death  of 
the  mortgagor.3 

Though  one  who  undertakes  to  execute  a  power  is  bound  to 
a  strict  compliance  therewith,  as  well  as  the  observance  of 
good  faith 4  and  a  suitable  regard  for  his  principal,  yet  a 
dereliction  in  this  respect  will  not  usually  affect  a  purchaser 
in  good  faith,  who,  being  a  stranger  to  his  proceedings  and 
finding  them  all  correct  in  form,  takes  the  property;  5  yet  as 
the  payment  of  the  debt  secured  by  the  trust  deed  or  mort- 
gage defeats  the  power  of  sale,  a  purchaser  at  a  sale  made 
under  such  power  must  see  to  it  that  the  grantor  in  the  deed 
or  mortgage  is  in  default,  and  that  some  part  of  the  debt  is 
due  and  unpaid.0 

The  omission  of  the  power  from  a  trust  deed  or  mortgage 
merely  limits  the  mode  of  foreclosure  to  bill  in  equity,7  while 
its  insertion  does  not  oust  the  jurisdiction  of  a  court  of  equity, 
nor  preclude  a  party  from  resorting  to  that  tribunal.  It  is 
cumulative  only.8  In  its  general  nature  it  is  a  power  coupled 
with  an  interest,   is  irrevocable,   appendant  to  the   land,   and 

2  Kinsley  v.  Ames,  2  Met.  29.  aside  while  the  title  remains  in  the 

3  Berger  v.  Bennett,  1  Caihe's  Cas.  mortgagee,  but  not  after  transfer 
(N.  Y. )  1.  Local  statutes  may,  to  a  bona  fide  purchaser:  (ribbons 
however,  serve  to  modify  the  state-  v.  Hoag,  95  111.  45. 

ment  of  the  text.  5  Montague    v.    Dawes,    14   Allen, 

4  If  a  sale  is  made  by  a  mortgagee       369. 

under  a  power   in  a  mortgage,  not  6  Ventres  v.  (?obb,  105  111.  33. 

•in  good  faith,  but  in  fact  for  him-  7  Cowles  v.  Marble,  37  Mich.  158. 

self,    to    whom    the    purchaser    con-  8  McAllister    v.    Plant,    54    Miss, 

veys.  the  sale  is  not  void,  but  only  106. 
voidable  in  equity,  and  it  may  be  set 


MORTGAGES.  447 

passes  by  an  assignment  of  the  mortgage  and  secured  debt ;  9 
it  is  not  impaired  by  the  death  of  the  mortgagor,  nor  by  lapse 
of  time,  if  not  unreasonable,  in  closing  the  sale  made  under  it ; 
and  covers  the  equity  of  redemption,  not  only  of  a  husband, 
but  also  that  of  his  wife  surviving  him.10 

At  the  present  time  power  of  sale  mortgages  are  infrequent 
and  in  many  States  no  foreclosure  is  permitted  except  in  equity. 
But  even  in  these  States  many  examples  of  this  species  of 
security  will  be  found  upon  the  records  and  in  the  past  history 
of  titles,  and  when  so  found  should  be  treated  as  above  indi- 
cated. 

§  365.  Assignment.  The  interest  of  a  mortgagee, 
whether  regarded  as  a  lien  or  an  estate,  is  assignable  in  law  by 
a  proper  instrument  purporting  to  convey  the  same,  while  the 
assigmnent  of  the  notes  secured  by  the  mortgage  operates  in 
equity  as  an  assignment  of  the  mortgage  itself.11  In  the  latter 
case,  the  assignment  of  the  debt  carries  with  it  the  security 
for  the  debt,  and  ordinarily  whoever  owns  the  debt  is  likewise 
the  owner  of  the  mortgage.12  Assignments  of  mortgages,  how- 
ever, are  usually  made  by  an  instrument  in  writing  and  under 

9  McGuire  r.  Van  Pelt,  55  Ala.  sonally  liable  upon  it,  but  is  obliged 
344;  Strother  t".  Law,  54  111.  413;  to  pay  it  to  save  his  estate,  and  he 
Hyde  r.  Warren,  46  Miss.  13;  Brown  does  pay  it,  the  payment  will  be 
v.  Delaney,  22  Minn.  349.  presumed  to  be  made  for  that  pur- 

10  Strother  v.  Law,  54  111.  413.  pose,   and   in   such   case   no   assign- 

1 1  Holmes  v.  MeGinty,  44  Miss.  ment  of  the  mortgage  to  the  per- 
94;  Moore  v.  Cornell,  68  Penn.  St.  son  paying  it,  nor  proof  of  an  in- 
322;  Blake  v.  Williams,  3  N.  H.  39;  tention  on  his  part  to  keep  it  alive. 
Croft  v.  Bunster,  9  Wis.  503 ;  Pot-  is  necessary  to  give  him  the  benefit 
ter  v.  Stevens,  40  Mo.  229.  An  as-  of  it:  Walker  v.  King,  44  Vt.  601; 
signment  in  law  is  not  recognized  and  in  like  manner  a  party  paying 
in  some  States.  a  decree  of  foreclosure  becomes  in- 

12  Kurtz  v.  Sponable,  6  Kan.  395;  vested  with  the  rights  of  the  mort- 
Nelson  V.  Ferris,  .30  Mich.  497;  gagee  and  the  assignee  in  equity  of 
Preston  v.  Morris  Case  &  Co.,  42  the  mortgage;  although  in  tin'*  case 
Iowa,  510;  Mulford  v.  Peterson.  35  the  mortgage  is  in  fact  paid,  yet 
N.  J.  L.  129;  Conner  v.  Banks,  18  equity  will  require  it  to  subsist  until 
Ala.  42;  Bell  v.  Simpson,  75  Mo.  every  party  who  owes  a  duty  under 
485.  Wliere  a  party  is  so  related  the  mortgage  Bhall  have  dscharged 
"-  a    mortgage  that   he  is  not  per-  it:   Wheeler  V.  Willard,  44  Vt.  640, 


448  ABSTRACTS    OP    TITLE;. 

seal,  which,  when  recorded,  affords  constructive  notice  of  the 
rights  of  the  assignee  to  all  persons,  as  against  any  subsequent 
acts  of  the  mortgagee  affecting  the  mortgage,  and  protects  as 
well  against  an  unauthorized  discharge  as  against  a  subse- 
quent assignment  by  the  mortgagee.13 

The  law  does  not,  as  a  rule,  require  the  assignment  to  be 
recorded,  as  essential  to  its  validity,  nor  is  it  necessary  for  the 
purposes  of  foreclosure ;  and  assignments  are  excepted  from 
the  operation  of  the  recording  laws  of  many  of  the  States. 
With  respect  to  the  necessity  of  registration  for  priority  of 
title,  the  same  general  rule  prevails  between  different  as- 
signees of  a  mortgage  as  between  grantees  in  ordinary  deeds,14 
and  a  release  by  the  mortgagee,  no  assignment  appearing  of 
record,  will  effectually  divest  the  lien,  notwithstanding  an  as- 
signment has  in  fact  been  made.15 

In  a  few  States,  a  mortgage  is  not  assignable,  either  by  the 
statute  or  by  the  common  law ;  the  assignment  of  the  note  car- 
ries the  mortgage  with  it,  but  only  in  equity,  and  trust  deeds 
given  as  security  for  a  loan,  being  regarded  in  the  nature  of 
mortgages,  stand  upon  the  same  footing  as  regards  assign- 
ability.16 

§  366.  Operation  and  Effect  of  Assignments.  Though 
there  are  not  wanting  authoritative  decisions  to  the  contrary, 
yet  the  better  and  more  generally  received  doctrine  seems  to 
be,  that  an  assignment  of  a  mortgage  is  to  be  regarded  only  as 
the  transfer  of  a  mere  chose  in  action,  and  not  an  interest 
in  lands,  the  debt  being  considered  as  the  principal  and  the 

13VieIe  v.  Judson,  82  N.  Y.   32;  303,    Bank    V.    Anderson,    14    Iowa, 

Stein  V.  Sullivan,  31  N.  J.  Eq.  409;  544;  Johnson  V.  Carpenter,  7  Minn. 

Torrey  v.  Deavitt,  53  Vt.  331.  176;   Union  College  v.   Wheeler,   61 

14  Wiley  v.  Williamson,  68  Me.  N.  Y.  88;  Baldwin  v.  Sager,  70 
71;  Trust  Co.  v.  Shaw,  5  Sawyer  111.  505;  Avers  v.  Hays,  60  Ind. 
(C.  Ct.),  330;  McClure  r,  Burris,  452;  Swartz  r.  Leist,  13  Ohio  St. 
16  Iowa,  591;  Torrey  v.  Deavitt,  53  419. 

Vt.  331;  Bacon  V.  Van  Schoonhover,  16  Olds  V.  Cummings,  31  111.  188; 

87  N.  Y.  446.  Walker    v.    Dement,    42     111.    272; 

15  Mitchell    v.    Burnham,    44    Me.       Baily  v.  Smith.  14  Ohio  St.  396. 


MORTGAGES. 


449 


land,  or  security,  only  the  incident ;  1 7  and  that  the  assignee 
takes  it  charged  with  the  notice  which  his  assignor  had  of  prior 
incumbrances,  and  subject  not  only  to  any  latent  equities 
that  exist  in  favor  of  the  mortgagor,  but  also  subject  to  equi- 
ties in  favor  of  third  persons.18 

§  367.  Formal  Requisites  of  Assignments.  Though 
the  earlier  decisions  hold  that -'the  interest  of  a  mortgagee  may 
be  transferred  or  conveyed  by  the  same  forms  of  deeds  by 
which  the  owner  of  the  legal  estate  can  convey  it,19  the  cur- 
rent of  later  cases  pronounces  a  contrary  doctrine.  The  mort- 
gagee's interest,  being  a  mere  chattel,  is  inseparable  from  the 
debt  it  is  given  to  secure,20  and,  not  constituting  an  estate 
or  interest  in  the  land,  will  not  pass  by  any  conveyance  thereof. 
Hence  a  deed  of  all  the  grantor's  "  estate,  title  and  interest  " 
in  the  mortgaged  premises,21  or  a  conveyance  of  all  his  "  lands, 
tenements  and  hereditaments,"  22  will  not  operate  as  an  as- 
signment of  a  mortgage ;  and  generally,  any  conveyance  or 
attempted  conveyance  of  the  mortgagee's  interest  before  fore- 
closure, not  accompanied  by  a  transfer  of  the  debt  secured,  is 
a  nullity.23 


it  Delano  v.  Bennett,  90  111.  533 
Hitchcock  v.  Merrick,  18  Wis.  357 
Paige  v.  Chapman,  58  N.  H.  333 
Bennett  v.  Saloman,  G  Cal.   134. 

18  Sims  V.  Hammond,  33  Iowa, 
368;  Mason  V.  Ainsworth,  58  111., 
163;  Sehofer  v.  Reilly,  50  N. 
Y.  61;  Crane  v.  Turner,  07  N.  Y. 
437;  Coffin  v.  Taylor,  16  111.  457; 
Olds  v.  Cummings,  31  111.  188.  The 
text  states  the  general  rule  but  the 
statute,  in  some  States,  has  changed 
this  rule  so  as  to  cut  off  latent 
equities. 

lfl  Welch  V.  Priest,  8  Allen 
(Mass.),  165;  Cutler  v.  Davenport, 
1  Pick.  81.  And  see  Connor  v. 
Wnitmore,  62  Me.  186;  Stewart  V. 
Barrow,   7    Bush    (Ky.),   368.     But 


29 


this  is  when  the  legal  estate  passes 
to  the  mortgagee. 

20  Mack  V.  Wetzler,  39  Cal.  247 ; 
Seckler  v.  Delfs,  25  Kan.  159;  Trim 
V.  Marsh,  54  N.  Y.  599. 

21  Swan  v.  Yaple,  35  Iowa,  248; 
Runyan  v.  Messercan,  11  Johns. 
534;   Delano  V.  Bennet,  90  111.  533. 

22  Mack  v.  Wetzlar,   39  Cal.  247. 
2.-5  Delano  V.  Bennett,  90  111.  533; 

Swan  v.  Yaple,  3  Iowa,  248;  John- 
son v.  Corbett,  29  Ind.  59;  Ellison 
l'.  Daniels,  11  N.  H.  271.  But  if 
the  mortgagee  is  in  possession  under 
his  mortgage  his  conveyance,  while 
it  would  be  ineffectual  as  regards 
•the  title,  might  yel  be  sufficienl  to 
confer  on  his  grantee  a  right  of  pos- 
session; Welsh  V.  Philips,  51  A t.i . 
309. 


450  ABSTRACTS    OF    TITLE. 

The  interest  owned  by  the  mortgagee  has  reference  solely 
to  the  mortgage  debt,  and  any  instrument  which  describes  the 
parties  and  the  indebtedness,  and  sufficiently  identifies  the 
mortgage,  will  be  effective  as  an  assignment  without  reference 
to  the  mortgaged  property,  while  the  instrument,  in  form, 
should  purport  to  be  a  transfer  of  the  mortgage  itself  and  of 
the  debt  thereby  secured,  and  not  of  the  land  pledged  for  the 
payment  of  such  debt.24 

§  368.  Release  and  Satisfaction.  Where  no  release  or 
satisfaction  of  a  mortgage  appears  of  record,  the  law  will  pre- 
sume a  payment  of  the  debt  it  was  given  to  secure,  where  the 
mortgagee  has  failed  to  exercise  his  right  of  foreclosure  for 
the  period  of  twenty  years  25  after  the  maturity  of  the  debt, 
and  the  mortgage  will  cease  to  be  a  lien  after  the  expiration 
of  that  period.26  The  mortgage  may  also  be  -satisfied  by  fore- 
closure, but  the  term  "  satisfaction  "  as  ordinarily  used,  refers 
to  a  specific  acknowledgment  of  payment  of  the  debt  and  dis- 
charge of  the  lien,  evidenced  by  some  written  instrument. 
Though  the  terms  "  release  "  and  "  satisfaction  "  are  used  inter- 
changeably, there  is  yet  a  distinction  between  them.  A  satis- 
faction implies  a  payment  of  the  debt,  and  ipso  facto  an  ex- 

24  When  the  mortgage  is  regarded  Perley,  11  Allen  (Mass.),  588.  De- 
as  a  mere  incident  to  the  debt  this  laney  V.  Brunette,  62  Wis.  615. 
would  be  sufficient,  but  more,  per-  26  This  follows  as  a  result  of  the 
haps,  would  be  required  in  States  statute  of  limitations.  See  also 
where  the  mortgagee  holds  the  legal  Blackwell  v.  Barnett,  52  Tex.  326; 
title  and  estate.  In  such  States  an  Whitney  v.  French,  25  Vt.  663; 
assignment  of  the  mortgage,  in  Pollock  v.  Maison,  41  111.  516; 
terms  which  does  not  profess  to  act  Locke  v.  Caldwell,  91  111.  417;  and 
upon  the  land,  would  not  pass  the  consult  4  Kent's  Com.  189;  Jack- 
mortgagee's  estate  in  the  land,  but  son  v.  Wood,  12  Johns,  242.  In 
only  the  security  it  affords  to  the  some  States  a  shorter  limitation 
holder  of  the  debt:  Williams  V.  period  is  provided.  Thus,  in  Illi- 
Teachey,  85  N.  C.  402.  nois,  the  lien  ceases  at  the  expira- 

25  Goodwin  v.  Baldwin,  59  Ala.  tion  of  ten  years  after  maturity. 
127 ;  Lawrence  V.  Ball,  14  N.  Y.  But  even  in  these  States,  as  between 
477 :  Emory  v.  Keighan,  88  111.  482 ;  the  parties,  the  lien  may  be  extended 
Howland      V.      Shurtleff,      2      Met.  by  payments  until  the  expiration  of 

(Mass.)     26.     The    presumption    is       the  full  limitation  period, 
disputable,     however:      Cheever     v. 


MORTGAGES.  451 

tinguishment  of  the  lien,  whereas  a  release  or  discharge  may 
relieve  the  land  from  the  burden  of  the  debt  without  in  the 
least  impairing  its  legal  efficacy  as  a  personal  claim  against  the 
debtor.27 

§  309.  Form  and  Requisites  of  Release.  The  general 
requisites  of  a  release  of  mortgage  differ  somewhat,  according 
to  the  light  in  which  it  is  to  be  regarded.  Where  the  mortgage 
retains  its  common  law  character  of  a  conveyance  of  the  legal 
estate,  a  deed  under  seal  with  apt  words  of  conveyance  will  be 
necessary  to  revest  the  title  of  the  mortgagor,  which  may  be 
effected  by  a  deed  of  release  and  quit-claim ;  28  but  where  it  is 
regarded  only  as  a  lien  or  security,  any  instrument  showing 
an  intention  to  relieve  the  land  from  the  burden,  or  acknowl- 
edging payment  or  satisfaction  of  the  debt  secured  by  the  mort- 
gage, will  be  sufficient  to  divest  the  lien  and  restore  the  land 
to  its  original  condition.29  The  latter  instrument  is  that  now 
generally  used,  and,  as  a  rule,  it  is  required  by  statute  to  be 
executed  by  the  mortgagee  or  his  assignee,  and  acknowledged 
or  proved  in  the  manner  provided  by  law  to  entitle  convey- 
ances to  record,  and  must  specify  that  such  mortgage  has  been 
paid,  or  otherwise  satisfied  or  discharged.  ISTo  other  formal- 
ities seem  necessary,  and  such  certificate,  popularly  known  as 
a  "  satisfaction  piece,"  has  the  same  effect  as  the  old  deed  of 
release.  In  a  few  States,  a  modified  form  of  a  release  deed 
is  still  preserved,  though  its  operation  and  effect  is  almost 
identical  with  the  certificate  of  payment,  or  "  satisfaction 
piece  "  of  the  other  States.  It  is  customary,  but  not  neces- 
sary, to  describe  the  property,  and,  except  in  case  of  partial 
releases,  such  description  has  no  other  effect  than  to  give  greater 
certainty  to  the  instrument  in  the  identification  of  the  land. 
A  release  or  satisfaction  immediately  follows  the  mortgage  it 
affects,  and  may  be  shown  in  brief  terms.30     Thus: 

27  Adington  v.  Hefner,  81  111.  341.  29  Headley  v.   Gaundry,  41   Barb. 

28  Waters  v.  Jones,  20  Iowa,  363;  279;  Thornton  v.  Irwin,  43  Mo.  153; 
Allard  v.  Lane,   18  Me.   9;    Perkins       Lucas  v.  Harris,  20  [11.  166. 

V.  Pitts,   11   Mass.   125;    and   see  2  30  A    satisfaction   piece  is  a  con- 

Jones  on  Mortgages  (2d  Ed.),  veyance  within  the  meaning  of  the 
§  972  et  seq.  recording   acts,    and   one   who   buys 


452  ABSTRACTS    OF    TITLE. 


Millard  F.  Biggie 

to 

James  Enright. 


Bel  ease. 
Dated,  etc. 


Consideration,  $1.00,  etc.31 
Beleases  all  right,  title,  interest,  etc.,  accjuired  by  mortgage, 
executed  by  second  party  to  first  party,  bearing  date  April  1, 
1880,  and  recorded  April  2,  1880,  in  book  306  of  Becords, 
page  597,  to  the  premises  therein  described  (describing  same) 
or,  to  the  premises  therein  described  as  follows,  etc.  [Where 
the  release  is  partial ;  to  so  much  of  the  premises  therein  as  is 
described  as  follows:] 
Acknowledgment. 

This  is  an  abstract  of  the  release  deed  in  use  in  Illinois.  A 
satisfaction  or  certificate  of  payment  will  require  only  slightly 
different  treatment. 

§  370.  Release  by  Trustee.  Where  by  a  trust  deed, 
duly  recorded,  land  is  conveyed  to  trustees  in  fee,  and  they 
are  authorized  to  execute  a  release  to  the  grantor  upon  pay- 
ment of  the  indebtedness  thereby  secured,  a  release  before  pay- 
ment would  be  a  breach  of  their  trust  and  would  be  unavail- 
ing in  equity  to  any  one  who  had  knowledge  of  the  breach.32 
But,  being  vested  with  the  legal  title  the  same  would  pass  by 
their  deed  of  release  to  the  releasee,33  and  a  second  convey- 
ance by  him  to  one  having  no  knowledge  of  such  breach,  the 
records,  or  a  conveyancer's  abstract  thereof,  showing  the  land  to 
be  unincumbered,  would  vest  the  legal  title  in  such  grantee,  or 

or  advances  money  to  be  secured  by  to    the    payment    of    the    mortgage 

mortgage  on  the  premises  is  a  bona  debt.     It  is  unnecessary  to  set  out 

fide  purchaser  within  the  provisions  the  clause;  "$1.00,  etc.,"  sufficiently 

of  said  acts:   Bacon  v.  Van  Schoon-  indicates  its  nature, 

hoven,  87  N.  Y.  446.     It  takes  the  32  Ins.  Co.  v.  Eldredge,  102  U.  S. 

place   of   a   release:     Ibid.,  and   see  545. 

Merchant  v.  Woods,  27  Minn.  396.  33  Taylor  v.  King,  6  Munf.   (Va.) 

31  The     original     clause     usually  358;  Den  V.  Trautman,  7  Ired.    (N. 

recites    "and    other    good    and   val-  C. )  155. 
uable  considerations."    This  alludes 


MOBTGAGES.  453 

if  made  by  way  of  pledge,  would  entitle  the  indebtedness  there- 
by secured  to  priority  of  payment.34 

This  is  a  subject,  however,  upon  which  there  is  not  an  en- 
tire unanimity  of  judicial  opinion.  Of  course,  if  the  trustee 
releases  the  trust  deed  before  payment  of  the  money  which  it 
was  given  to  secure,  in  contravention  of  his  trust,  such  re- 
lease, as  between  the  immediate  parties,  as  well  as  all  others 
who  have  notice  of  the  facts,  will  be  void  and  the  lien  will  be 
unaffected  thereby,  as  the  rights  of  the  cestui  que  trust  are  su- 
perior to  those  of  any  person  chargeable  with  notice  that  the 
trust  deed  was  released  in  violation  of  its  terms.  There  are 
cases  which  seem  to  hold  that  an  unauthorized  release  is  void 
as  to  all  persons,  even  subsequent  purchasers  in  good  faith,35 
but  the  better  rule,  and  that  which  is  sustained  by  the  vol- 
ume of  authority,  is  that  the  public  records  import  verity; 
that  being  maintained  for  the  purpose  of  furnishing  evidence 
of  title  a  purchaser  may  rely  thereon  and  will  be  protected  by 
what  is  there  shown,  unless  he  has  notice,  or  is  in  some  way 
chargeable  with  notice  of  some  title  or  claim  inconsistent  there- 
with.30 It  has  further  been  held,  that  the  mere  fact  that 
a  trust  deed  is  released  of  record  prior  to  the  time  of  the  ma- 
turity of  the  indebtedness  thereby  secured,  is  not  a  circum- 
stance to  excite  inquiry  on  the  part  of  an  intending  pur- 
chaser.37 

But,  in  any  event,  a  far  greater  degree  of  care  must  be  ob- 
served in  passing  the  release  of  a  trustee  than  of  a  mortgagee, 
and  purchasers  are  chargeable  with  notice  of  all  the  recitals 
of  the  trust  deed.  They  are  bound  to  observe  the  limited 
power  of  the  trustee  to  release  the  pledged  property;  the  time 
the  notes  for  which  it  was  given  have  to  run,  and  the  terms 
which  authorize  a  reconveyance;  and  where  a  release  is  made 

34  Williams  v.  Jackson,  107  U.  S.  Lennartz  v.  Quality,  191  III.  174. 
478;  Barbour  v.  Scottish-American  .17  Livermore  v.  Maxwell,  87  Iowa, 
Mtg.  Co.,  102  111.  Til.  705;    Lennartz   v.    Quilty,    191    111. 

35  See,  Mcpherson  v.  Rollins,  107  174;  But  see,  McPherson  v.  Rol- 
N.  Y.  316.  lins,    107    N.    Y.    310;    Atkinson   v. 

3C  Day  v.  Brenton,  102  Iowa,  482 ;       Greaves,  70  Miss.  45. 


4-54  ABSTRACTS    OF    TITLE. 

before  the  maturity  of  the  notes,  they  being  negotiable,  a  pru- 
dent counsel  should  insist  upon  their  production  or  of  satis- 
factory evidence  showing  that  they  have  been  surrendered  or 
paid.  Another  feature  is  presented  where  the  trust  has  been 
placed  in  two  trustees,  and  counsel  in  making  examinations 
should  be  careful  to  see  that  both  trustees  have  united  in  the 
release,  for  no  point  is  better  established  than  that  the  release 
of  lands  by  one  of  two  joint  trustees  is  not,  in  itself,  sufficient 
to  discharge  the  land  from  the  lien  of  the  mortgage. 

Not  infrequently  releases  are  executed  by  the  successor  in 
trust,  the  trustee  having  died  or  become  disqualified.  Where 
provision  is  made  therefor  in  the  trust  deed  such  a  release  is 
valid  and  effectual  upon  the  happening  of  the  contingency. 
If  the  trust  deed  is  rhown  in  the  examination  the  power  of 
the  Miccessor  should  be  inserted  in  the  abstract.  If  the  trust 
deed  is  not  shown,  as  where  the  release  is  exhibited  in  a  con- 
tinuation, or  if  the  power  of  the  successor  is  not  given  in  the 
abstract  of  the  trust  deed  as  it  appears  in  the  former  examina- 
tion, a  note  embodying  the  essential  facts  should  be  appended 
to  the  abstract  of  the  release.  The  following  will  serve  as  a 
suggestion : 

ISTote. —  The  Trust  Deed  from  Thomas  Smith  to  James  Brown, 
recorded  Oct.  30,  1891,  as  Doc.  15005,  in  Booh  50  of 
Records,  at  page  301,  provides  that  in  case  of  the 
death,  resignation,  removal  from  Cook  county,  Illinois, 
or  other  inability  to  act  of  said  grantee,  then  Olney  B. 
Stuart  is  thereby  appointed  and  made  successor  in 
trust  therein  ivith  like  power  and  authority  as  is  vested 
in  said  grantee. 

§  371.  Marginal  Discharge.  A  release  or  discharge 
made  by  entry  upon  the  margin  of  the  record  of  the  mortgage 
or  other  instrument,  is  in  common  use  in  all  the  States,  and 
when  made  by  the  owner  of  the  mortgage,  with  whatever  for- 
malities may  be  prescribed  by  law,  is  as  effectual  in  divesting 
the  lien  of  record  as  a  formal  and  separate  satisfaction  piece 


MORTGAGES.  455 

or  release.38  It  will  be  understood,  however,  that  the  author- 
ity of  the  person  so  undertaking  to  make  the  discharge  must 
affirmatively  appear  of  record,  for  a  marginal  entry  of  satis- 
faction by  a  stranger,  without  authority,  is  void,  although  he 
claims  to  be  the  assignee  of  the  mortgage  and  owner  of  the 
indebtedness,39  and  where  a  person  purporting  to  be  the  "  as- 
signee of  said  mortgage  "  assumes  to  discharge  same,  but  no 
assignment  appears  of  record,  this  constitutes  a  radical  defect 
in  the  title  40  which  should  be  remedied  before  it  is  accepted. 
A  marginal  release  or  satisfaction  should  immediately  follow 
the  mortgage  it  affects,  and  being  brief  itself  the  abstract  is 
correspondingly  so,  consisting  principally  of  a  recital  of  the 
release ;  thus, 


On  the  margin  of  the  record  of  the  foregoing  is: 
Satisfaction  of  Mortgage. 
Dated  June  21,  1883. 
Recites     that     "  within "     mortgage 
has  been  fully  paid,  satisfied  and  dis- 
charged. 


Thomas  Smith 

(Assignee)*1 

to 

William  Jones. 


Not  witnessed.*2 

When  a  mortgage  or  deed  of  trust  is  duly  recorded,  the  per- 
son whose  property  is  incumbered  thereby  is  entitled  upon 
fully  paying  and  satisfying  the  debt,  to  secure  which  such 
mortgage  or  trust  deed  was  given,  to  have  satisfaction  of  the 
same  entered  upon  the  margin  of  the  record.  And  a  mortga- 
gee or  trustee  who  fails  or  refuses,  when  duly  requested,   to 

38  A    purchaser    finding    a    mort-  39  De  Laureal  v.  Kemper,  9  Mo. 

gage  satisfied  of  record  by  a  mar-  App.  77. 

ginal  entry,  and  upon  the  faith  of  40  Torrey   c.  Deavitt,  53  Vt.  331. 

which,   without   actual   notice   of   a  41  When  such  is  the  case, 

mistake,    pays    the    purchase    price.  42  Marginal    releases    must,   as   a 

will  take  the  title  clear  of  the  mort-  rule,   be   witnessed   by  the  recorder 

gage,  although  it  turns  out  that  the  or  officer  having  charge  of  the  rec- 

entry   was   a  mistake   which   would  ords. 
be  rectified  as  between  the  parties: 
Ayers  v.  Hays,  60  Ind.  452. 


456  ABSTRACTS    OF    TITLE. 

enter  up  such  satisfaction  or  to  execute  a  deed  of  release,  is 
liable  in  damages  to  the  party  aggrieved.43 

It  will  sometimes  happen  that  the  release  is  made,  not  by 
the  mortgagee,  but  by  some  person  acting  for  him,  as  an  attor- 
ney in  fact ;  or  it  may  be  that  the  mortgagee  has  died  and  the 
release  is  by  his  personal  representative.  In  either  event  the 
authority  should  in  some  manner  appear.  A  note,  in  many 
instances,  will  be  sufficient,  and  when  the  release  is  made,  say 
by  an  executor,  the  essential  facts  of  authority  may  be  shown 
in  this  manner: 

]STote. — The  Probate  records  of  Cook  County,  Illinois,  show 
that  William  Dinsmore  died  Oct.  19,  1895,  leaving  a 
last  will  and  testament  in  and  by  which  he  appointed 
Charles  E.  Pope  executor  thereof;  that  said  will  ivas 
duly  proved  and  admitted  to  record  and  Letters  Testa- 
mentary thereon  were  issued  to  said  Charles  E.  Pope, 
on  Oct.  29,  1895. 

§  372.  Foreclosure.  Foreclosures  by  entry  and  posses- 
sion, or  strict  foreclosures,  are  now  rarely  pursued  or  allowed 
in  a  majority  of  the  States,  while  in  many  they  are  positively 
prohibited.  They  are  regarded  by  courts  as  severe  remedies, 
inasmuch  as  they  transfer  the  absolute  title  without  sale,  and 
sometimes  without  notice,  no  matter  what  the  value  of  the 
premises.  In  like  manner  foreclosures  by  advertisement  and 
sale,  so  called,  are  now  generally  discountenanced  even  where 
allowed,  and  resort  is  usually  had  to  a  court  of  equity  to  per- 
fect a  title  acquired  through  this  channel.  In  foreclosure  by 
advertisement  the  mortgagee's  or  trustee's  deed  recites  the  pro- 
ceedings, while  foreclosures  in  equity  are  shown  by  a  summary 
of  the  proceedings,  decree  and  report  of  sale. 

§  373.  Proof  of  Title  under  Foreclosure.  To  sustain 
a  title  under  foreclosure  it  would  be  necessary  to  show:  the 

43  Verges  v.  Giboney,  47  Mo.  171 ;       Y.),  648.     This  is  the  general  statu- 
Sherwood  v.  Wilson;  2  Sweeny  (N.       tory  doctrine. 


MORTGAGES.  457 

mortgage ;  the  judgment  roll ;  the  decree ;  the  sale ;  and  the 
officer's  deed.  The  abstract,  therefore,  should  disclose  in  a 
connected  and  orderly  manner  the  essential  features  of  each 
of  the  steps  and  proceedings  above  enumerated,  and  whenever 
practicable,  in  the  order  here  given.  The  mortgage  need  not 
be  minutely  described,  nor  is  it  necessary  that  the  power  of 
sale  be  shown.44  General  references  are  sufficient.  The  judg- 
ment roll  must  show  the  regularity  of  the  proceedings  and  the 
jurisdiction  of  the  court  both  as  to  the  subject-matter  and  the 
parties.  Final  and  interlocutory  decrees  must  show  every  ma- 
terial point  passed  upon.  The  sale  is  evidenced  by  the  officer's 
certificate  of  sale,  report  and  confirmation.  The  deed  follows 
as  a  part  of  all  that  has  preceded  it,  and  the  whole  constitutes 
but  one  transaction.  Each  of  the  several  separate  features  are 
integral  and  necessary  parts. 

44  This  feature  derives  most  of  its       foreclosure  by  advertisement  under 
importance  where  there  has  been  a       the  power. 


CHAPTER  XXIII. 


WILLS. 


374. 

Generally  considered. 

§  395. 

Conditional    devise  —  mar- 

375. 

Nuncupative  wills. 

riage. 

37G. 

Nature  of  testamentary  ti- 

396. 

Contingent  remainders. 

tles. 

397. 

Contingent   reversion. 

377. 

Definitions. 

398. 

Devise  to  married  woman. 

378. 

Operation  and   effect  of  de- 

399. 

Devises      to     executors     in 

vises. 

trust. 

379. 

Validity  of  devises. 

400. 

Bequest    to    devisee   by    de- 

380. 

Testamentary  capacity. 

scription. 

381. 

Construction  of  wills. 

401. 

Precatory  trusts. 

381a 

Errors  of  description. 

402. 

Perpetuities. 

382. 

Repugnancy. 

403. 

Lapsed  devise. 

383. 

Descent  or  purchase. 

404. 

Devises  for  the  payment  of 

384. 

Words  of  grant. 

debts. 

385. 

Words  of  purchase  and  limi- 

405. 

Charges  on  lands  devised. 

tation. 

406. 

Equitable  conversion. 

386. 

The  rule  in  Shelly's  case. 

407. 

Residuary  clause. 

387. 

Interpretation  of  particular 

408. 

Codicils. 

words  and  phrases. 

409. 

Revocation.  " 

388. 

Words   which  pass  real  es- 

410. 

Formal  requisites. 

tate. 

411. 

Abstract  of  wills. 

389. 

Limitations  and  remainders. 

412. 

Method  of  arrangement. 

390. 

Devise  to  a  class. 

413. 

Practical  examples. 

391. 

Gifts     of     the     income     of 

414. 

Probate  of  wills. 

realty. 

415. 

Effect  of  probate. 

392. 

Devise  with  power  of  dispo- 

416. 

Foreign   probate. 

sition. 

417. 

Abstract    of    probate    pro- 

393. 

Indeterminate  devise. 

ceedings. 

394. 

Devise   on   condition   prece- 
dent. 

§  374.  Generally  Considered.  The  subject  of  testamen- 
tary conveyances  can  only  be  treated  briefly  and  in  outline. 
They  occur  in  every  title  of  long  standing,  and  present  a 
greater  variety  of  phases  and  give  rise  to  more  questions  in 
construction  than  any  other  species  of  conveyance.     They  have 

458 


wills.  459 

been  the  subject  of  much  legislation,  and  of  a  vast  number  of 
inharmonious,  conflicting  and  sometimes  contradictory  deci- 
sions. As  muniments  of  title  they  should  be  of  equal  dignity 
with  deeds,  after  proper  probate  and  administration ;  but  the 
subtleties  which  have  been  incorporated  into  the  laws  govern- 
ing their  construction  have  rendered  them  less  so,  except  in 
cases  of  direct,  absolute  and  unincumbered  gifts.  In  the  fol- 
lowing paragraphs  an  attempt  has  been  made  to  briefly  enu- 
merate a  few  of  the  leading  characteristics  of  this  class  of 
conveyances,  and  to  point  out,  in  a  general  way,  some  of  the 
questions  that  arise  in  examination  of  titles  acquired  by  way 
of  testamentary  gift.  This  has  been  done  in  a  suggestive, 
rather  than  an  exhaustive  manner,  for  the  narrow  limits  of 
our  book  will  permit  of  none  other,  and  what  follows  is  in- 
tended merely  as  clues  or  reminders  to  stimulate  the  examiner, 
and  direct  his  attention  to  matters  that  otherwise  might  have 
escaped  his  observation. 

§  375.  Nuncupative  Wills.  Oral  declarations  of  a  testa- 
mentary character  made  in  extremis  are  available  only  in  the 
disposition  of  personal  property,  and  hence  are  not  considered 
in  the  examination  of  titles.1 

§  376.  Nature  of  Testamentary  Titles.  One  who 
takes  under  a  will  is  regarded  as  a  purchaser  equally  with  him 
who  takes  under  a  deed,  but  the  estate  and  title  in  the  hands 
of  a  devisee,  while  as  full  and  ample  as  though  derived  by 
deed,  does  not  always  possess  that  indefeasible  character  which 
attaches  to  it  in  the  latter  case.  An  innocent  purchaser  by 
deed  takes  the  title  unaffected  by  latent  equities,  and  the  un- 
disclosed rights  of  third  persons,  but  the  devisee  acquires  only 
the  title  of  the  testator  as  it  existed  at  the  time  of  his  death, 
with  all  its  infirmities  and  imperfections,  and  subject  to  all 
equities  and  liens  in  favor  of  strangers.  Such  title,  though 
comprising  the  fee,  or  whatever  interest  may  have  been  granted, 
is  further  liable  to  be  defeated  during  the  course  of  adminis- 

i  Lewis  v.  Aylott,  45  Tex.  190;  Campbell  v.  Campbell,  21  Mich.  438. 
Smithdeal   v.    Smith,   G4   N.   C.   52; 


460  ABSTRACTS    OF    TITLE. 

tration  by  a  sale  by  tbe  executor  in  satisfaction  of  the  debts  of 
the  decedent ;  2  or  by  the  very  instrument  of  its  conveyance, 
when  legacies  thereby  given  are  expressly  charged  upon  the 
realty  and  there  exists  a  deficiency  of  personal  assets ;  3  or 
where  the  devise  is  couched  in  ambiguous  or  uncertain  lan- 
guage requiring  a  judicial  construction.  The  two  former  con- 
tingencies can  arise  only  prior  to  final  settlement  in  the  due 
course  of  administration;  the  latter  at  any  time  before  the  bar 
of  the  statute  has  intervened. 

The  title  to  land  devised  vests  in  the  devisee  immediately 
upon  the  death  of  the  testator;  and  such  devisee  is  entitled  to 
the  immediate  possession  of  the  land,  and  to  hold  the  same 
until,  when  necessary,  it  is  subjected  by  the  executor  to  the 
payment  of  debts.4 

§  377.  Definitions.  "  Devise  "  is  the  generic  term  em- 
ployed to  denote  a  gift  of  real  property  by  a  person's  last  will 
and  testament,  and  is  distinguished  from  "  legacy,"  which  ap- 
plies only  to  personalty.  By  analogy,  the  person  to  whom 
the  gift  is  made  is  called  a  devisee,  and  the  testator  is  fre- 
quently spoken  of  as  the  devisor.  The  term  "  bequest "  is  of 
indiscriminate  application  and  includes  both  "  devise "  and 
"  legacy."  5 

§  378.  Operation  and  Effect  of  Devises.  It  is  a  rule 
of  the  common  law  that  a  will  operates  only  upon  lands  owned 
by  the  testator  at  the  time  such  will  was  made,  and  the  title 
to  which  he  retained  to  the  time  of  his  decease.  This  rule  has 
been  very  generally  changed  by  statute,  which  substitutes  there- 
for a  more  reasonable  rule  to  the  effect,  that  every  will  that 
shall  be  made  by  a  testator  in  express  terms,  of  all  his  real 

2  Hill  v.  Treat,  67  Me.  501;  Van-  and  entertain  a  bill  to  compel  him 
syckle  v.  Richardson,  13  111.  171.  to    perform    his    trust:     Mahar    v. 

3  Wood  V.  Sampson,  25  Gratt.  O'Hara,  4  Gilm.  (111.)  424;  Burch 
(Va.)     845;    Lewis    v.    Darling,    16       V.  Burch,  52  Ind.   136. 

How.    1.     A   devisee   who   takes   an  4  Hall  V.  Hall,  47  Ala.  290;  Ham- 
estate    under    a    will    assumes    the  ilton  v.  Porter,  63  Pa.  St.  332. 
payment   of  legacies   imposed   upon  5  Dow  V.  Dow,  36  Me.  211;  Ladd 
him  by  the  terms  of  the  will,   and  v.  Harvey,  1  Fost.  (N.  H. )  514;  Lal- 
equity  will  regard  him  as  a  trustee  lerstedt  v.  Jennings,  23  Ga.  571. 


WILLS.  461 

estate,  or  in  any  other  terms  denoting  his  intent  to  devise  all 
his  property,  shall  be  construed  to  pass  all  the  estate  which  he 
was  entitled  to  devise  at  the  time  of  his  death.6  It  is  the  ap- 
plication of  this  rule  which  gives  to  the  residuary  clause  much 
of  its  present  importance.  Intention,  however,  is,  after  all,  the 
true  test  of  a  will,  and  where  the  intention  is  manifest,  the  will 
speaks  from  the  time  intended  by  the  testator,7  even  though 
before  his  death.8 

§  379.  Talidity  of  Devises.  The  several  States  possess 
inherent  power  to  define  the  tenure  of  real  property  within 
their  respective  limits ;  to  prescribe  the  mode  of  its  acquisi- 
tion and  transfer,  the  rules  of  its  descent,  and  the  extent  to 
which  a  testamentary  disposition  of  it  may  be  exercised  by  its 
owners  as  well  as  the  persons  or  classes  of  persons  who  may 
take  under  such  disposition.9  Resort  must  therefore  Be  had 
to  the  statute  to  determine  the  validity  of  all  bequests,  and, 
where  that  describes  or  enumerates  the  persons  or  classes  who 
may  take,  a  devise  to  persons  or  classes  not  therein  specified 
will,  it  seems,  be  void.10  Where  a  devise  is  void  by  the  rules 
of  law,  the  land  descends  to  the  heirs  at  law  of  the  testator.11 

§  380.  Testamentary  Capacity.  Every  work  on  wills  is 
largely  devoted  to  the  subject  of  testamentary  capacity.  This 
is  a  subject,  however,  that  will  rarely  be  presented  in  exam- 

6  Canfield  v.  Bostwick,  21  Conn.  (4  Otto)  315;  Kerr  v.  Dougherty,  7 
550;  Peters  v.  Spillman,  18  111.  373;       N.   Y.   327. 

Haley    v.    Gatewood,    74    Tex.    281 ;  10  Thus,    by    a    statute    of    New 

but  though  it  is  a  general  rule,  that  York,    a    devise    of    lands    in    that 

a   will    is   held   to   speak   from   the  State  can  only  be  made  to  natural 

death   of   the   testator,    it   is   other-  persons,    and    to    such    corporations 

wise   where   the    language   used   re-  as    are    created   under   the   laws    of 

peals  the  presumption,   taking  into  the    State    and    are    authorized    to 

consideration  the  entire  instrument:  take  by  devise;   a  devise,  therefore, 

Updike    v.    Tompkins,    100    111.    40G.  of  lands   in  that   State  to  the  gov- 

7  Gold  r.  Judson,  21  Conn.  616;  ernment  of  the  United  States  was 
Dunlap  p.  Dunlap,  74  Me.  402.  held  void:  United  States  V.  Fox,  94 

8  Phillipsburg    v.    Burch,    37    N.  U.  S.  315. 

J.  Eq.  482.  uDeford  v.  Deford,  36  Md.  168; 

'J  United  States  V.  Fox,  94  U.  S.       James  V.  James,   1   Paige,  115;  Hay- 
den  v.  Stoughton,  5  Pick.  528. 


462  ABSTRACTS    OF    TITLE. 

inations  of  title,  otherwise  than  as  it  incidentally  appears  in 
the  proceedings  relative  to  probate.  The  right  of  testamentary 
disposition  is  controlled  by  statute,  but  is  given  generally  to 
all  persons  of  full  (legal)  age,  being  of  sound  mind  and  mem- 
ory, and  extends  to  all  species  of  property  and  to  every  right, 
title  and  interest  therein.  Alienage  and  coverture,  formerly 
constituted  common  law  or  statutory  disabilities,  but  a  grad- 
ual removal  of  restraints  on  alienation  has  virtually  or  ex- 
pressly abolished  such  disabilities  in  the  United  States.  In- 
fants and  persons  of  insufficient  mind  are  about  the  only  per- 
sons upon  whom  any  restrictions  are  now  placed.  The  facts 
of  legal  age  and  a  sound  and  disposing  mind12  are  matters  of 
primary  investigation  and  proof  in  all  probates  of  wills,  and 
the  questions  thus  presented  and  presumably  satisfactorily  an- 
swered at  the  outset,  are  not  again  raised  during  the  examina- 
tion. 

§  381.  Construction  of  Wills.  Upon  the  ground  that 
wills  are  often  made  in  haste,  and  by  inexperienced  persons,  a 
devise  is  not  construed  strictly  and  technically,  like  a  deed, 
but  liberally,  and  according  to  the  intent  of  the  testator,  and 
such  intent  may  be  gathered,  in  case  of  doubt,  not  from  de- 
tached clauses,  but  from  the  whole  will,  so  that  every  word 
may  have  its  effect,  if  possible.13  On  the  other  hand,  there 
is  a  certain  degree  of  strictness  in  the  construction  of  wills 
that  is  almost  wholly  wanting  in  the  case  of  deeds,  and  while 
courts  may  look  beyond  the  wTritten  words  yet  extrinsic  evi- 
dence is  never  admissible  to  alter,  detract  from  or  add  to  what 
is  there  set  down. 

It  is  a  cardinal  rule  in  the  construction  of  wills,  that  a 
testator  is  always  presumed  to  use  the  words  in  which  he  ex- 

12  To  be  of  sound  and  disposing  13  Welch    v.    Kuse.    49    Cal.    507; 

mind,  the  law  simply  requires  that  Butler  r.  Huestis,  08  111.  59-i;  Lytle 

the  testator  be  able  to  manage  his  v.  Beveridge,  58  N.  Y.  592;  Moran 

own    affairs,    and    to    know    intelli-  v.  Dillehay,  8  Bush.  434;  Bergan  V. 

gently  what  disposition  he  is  mak-  Cahill,    55   111.    100. 
ing    of    them :     Harvey    v.    Sullen's 
Heirs,  56  Mo.  372. 


wills.  463 

presses  himself,  according  to  their  strict  and  primary  accepta- 
tion, unless  from  the  context  it  appears  that'  he  has  used  them 
in  a  different  sense ;  in  which  case  the  sense  in  which  he  thus 
appears  to  have  used  them  will  be  the  sense  in  which  they  are 
to  he  construed,14  and  technical  words  are  presumed  to  be 
used  in  their  legal  sense,  unless  there  is  a  plain  intent  to  the 
contrary.15  The  general  intent  will  prevail  over  expressions 
indicating  a  different  particular  intent,16  though  every  ex- 
pressed particular  intent  must  be  carried  out  when  it  can  be,17 
and  when  a  will  is  susceptible  of  a  two-fold  construction,  one 
of  which  avoids  and  the  other  upholds  it,  the  latter  must  be 
adopted.18  The  general  rule,  however,  that  wills  are  to  be 
construed  according  to  the  intention  of  the  testator,  must  be 
understood  as  the  intention  of  the  testator  as  expressed  in  the 
will;  and  this  must  be  judged  of  exclusively  by  the  words  of 
the  instrument,  as  applied  to  the  subject-matter  and  the  sur- 
rounding circumstances,19  and  not  from  extrinsic  matter  or 
evidence  aliunde.20 

These  are  the  fundamental  principles  that  govern  the  con- 

i4Lr.ce  v.  Dunham,  69  N.  Y.  36;  Blanchard  v.  Maynard,  103   111.  60. 

Edwards    r.     Bibb,     43     Ala.     666;  20  McAlister     v.     Butterfield,     31 

Mead  V.  Jennings,  46  Mo.  91;  Felt-  Ind.    25;    Brownfield   v.    Wilson,    78 

man  v.  Butts,  8   Bush    (Ky.),   115.  111.    467;    Caldwell    v.    Caldwell,    7 

Words  may  be  considered  in  an  or-  Bush      (Ky. ),     515;      Sherwood     v. 

der  other  than  that   in  which  they  Sherwood,  45  Wis.  357.     It  is  true 

are  placed,  if  the  intent  of  the  tes-  that  the  condition  of  the  testator  at 

tator  is  better  served  thus:   Ferry's  the  time  of  execution,   the  state  of 

Appeal,  102  Pa.  St.  207.  his    property,    his    family    and    the 

1 5  Butler  r.  Huestis,  68  111.  594 ;  like,  may  be  shown  in  order  to 
France's  Estate,  75  Pa.  St.  220;  De-  throw  light  upon  his  intention,  yet 
Kay  v.  Irving,  5  Ben.  646.  as  the  writing  is  the  only  outward 

16  Bell  i?.  Humphrey,  8  W.  Va.  1 ;  and  visible  expression  of  his  mean- 
Parks  v.  Parks.  9  Paige,  107;  ing,  no  other  words,  as  a  rule,  can 
Sehott's  Estate,  78  Pa.  St.  40;  Wat-  be  added  to  or  substituted  for  those 
Bon  r.  Blackwood,  50  Miss.  15.  used.     Hunt  V.  White,  24  Tex.  643; 

17  Bell  r.  Humphrey,  8  W.  Va.  1 ;  Mackie  v.  Story,  93  U.  S.  589;  Aber- 
Lepage   V.  McNamara,  5  Iowa,   124.  crombie    V.    Abercrombie,    27     Ala. 

1 8 Mason  v.  Jones,  2  Barb.  229.  489;    Herrick    r.    Stover.    5    Wend. 

19  Bell  r.  Humphrey,  8  W.  Va.  1 ;  (N.  Y.)  580.  See,  however,  the  suc- 
Wlieeler   V.  Hartshorn,  40  Wis.  83;       ceeding  section  on  "  repugnancy." 


464  ABSTRACTS    OF    TITLE. 

struction  of  wills,  and  to  them  little  can  be  added  that  is  of 
general  application.  The  donor  of  property  by  testamentary 
disposition  has  an  almost  unlimited  scope  within  which  to  ex- 
ercise his  judgment  or  to  gratify  his  caprice,  and  while  multi- 
tudes of  wills  are  daily  presented  for  construction  it  is  seldom 
that  we  find  any  two  of  them  exactly  similar.  Unlike  deeds 
of  conveyance  in  this  respect,  they  are  as  multiform  and  dis- 
tinct in  their  structure,  phraseology  and  purposes  as  are  the 
mental  operations,  motives  and  feelings  of  the  different  tes- 
tators. The  intention  must  in  all  cases  be  sought  for  and  if 
possible  ascertained ;  and  this  intention,  when  it  is  not  in  con- 
flict with  the  settled  policy  of  law,  will  always  be  respected  and 
allowed  to  operate.21  Any  construction  which  will  result  in 
partial  intestacy  is  to  be  avoided,  unless  the  language  of  the 
Avill  compels  it.22 

The  questions  of  construction  more  frequently  presented  in 
the  examination  of  titles,  arise  through  the  failure  of  the  tes- 
tator to  make  a  full  and  explicit  disclosure  of  the  method  of 
disposition.  The  rule  is  fundamental,  in  such  cases,  that  the 
deficiencies  cannot  be  supplied,  nor  the  inaccuracies  corrected 
by  extrinsic  evidence,  and  so  strict  are  the  courts  in  applying 
this  rule  that  they  will  not  permit  the  terms  of  the  will  to  be 
altered  even  where  the  testator  has,  by  mistake,  misdescribed 
lands,  by  substituting  those  which  can  clearly  be  proved,  he 
intended  to  devise.23  This  is  in  pursuance  of  the  old  and  well 
known  principle  that  extrinsic  evidence  cannot  be  received  to 
change  or  vary  a  solemnly  executed  instrument.  Yet  the  rule 
is  subject  to  some  qualification  in  the  case  of  erroneous  descrip- 

21  Douglass  V.  Blackford,  7  Md.  tinder  the  will  are  always  to  be  de- 
22;  Summit  V.  Yount,  109  Ind.  506.  termined  by  the  law   as   it  existed 

22  Vernon  v.  Vernon,  53  N.  Y.  at  the  time  the  will  took  effect: 
351;  Cate  v.  Cranor,  30  Ind.  292.  Carpenter  v.  Browning,  98  111.  282. 
The  state  of  the  law  at  the  time  of  23  See,  Kurtz  v.  Hibner,  55  111. 
the  execution  of  a  will  often  af-  514;  Starkweather  v.  Bible  Society, 
fords  material  assistance  in  arriv-  72  111.  50.  The  text  states  the  gen- 
ing  at  the  intention  of  the  testator,  eral  rule,  but  this  seems  to  have 
when  it  would  otherwise  be  doubt-  been  disputed  in  some  States. 

ful,  but  the  rights  of  parties  taking 


wills.  465 

tions  where  by  striking  out  a  word  or  phrase  shown  to  be  false 
a  partial  intestacy  may  be  avoided. 

§  381a.  Errors  of  Description.  Not  infrequently, 
through  inadvertence  or  mistake,  a  testator  will  devise  lands 
which  he  does  not  own  and  omit  to  dispose  of  lands  which  he 
does  own,  thereby  creating  a  partial  intestacy.  Thus,  the 
devise  may  be  of  Lot  A,  a  tract  which  the  testator  did  not  own, 
either  at  the  time  of  making  the  will  or  at  his  death.  It  may 
be  that  he  did  own  Lot  B,  and  that  this  fact  is  known  to 
counsel.  Here,  then,  we  have  what  is  known  as  a  latent  am- 
biguity and  the  questions  which  it  raises  are  very  perplexing. 
The  general  rule  is,  that,  however  many  errors  there  may  be 
in  the  terms  of  description  employed  in  a  will,  whether  of 
the  devisee  or  the  subject-matter  of  the,  devise,  the  gift  will 
not  be  avoided  if,  after  rejecting  the  errors  or  false  words, 
enough  remains  to  show  with  reasonable  certainty  what  was 
intended  by  the  testator.  Hence,  a  devise  of  land  by  a  de- 
scription partly  false,  as  where  a  wrong  section  number  is 
given,  may  yet  be  effective  if  what  remains,  after  rejecting 
the  false,  will  serve  to  identify  the  particular  tract  which  was 
intended.24 

But  this  rule  is  for  the  guidance  and  direction  of  courts  in 
the  construction  of  wills.  A  court,  in  a  proper  case,  may  strike 
out  false  or  ambiguous  words,  and  may  then  read  the  will  with 
the  false  words  eliminated  therefrom.  Counsel,  however,  in 
the  examination  of  a  title,  has  no  such  privilege.  His  own 
knowledge  of  the  actual  facts  may  serve  to  indicate  a  course 
to  be  pursued  in  order  to  perfect  title,  but  he  cannot  himself 
construe  the  will,  nor  should  he  attempt  to  apply  the  rule, 
however  certain  he  may  be  that  the  rights  of  the  parties  will 
be  determined  by  it.  In  a  case  such  as  we  are  now  consider- 
ing counsel  can  do  no  more  than  point  out  the  latent  defect 
and  suggest  a  remedy  that  will  serve  to  cure  it. 

The  strong  tendency  of  modern  decisions  is  to  avoid  even 

24  See,  Pate  v.  Bushong,  161  Ind.       116;    Stewart  v.   Stewart,    !i6   Iowa 
533;  Whitcomb  v.  Rodman,  156  111.       620. 
30 


466  ABSTRACTS    OF    TITLE. 

partial  intestacy,  and  while  extrinsic  evidence  may  not  be 
resorted  to  for  the  purpose  of  changing  or  varying  the  words 
of  a  will,  yet  it  is  now  well  settled  that  when  a  latent  ambi- 
guitv  is  disclosed  by  extrinsic  evidence  it  may  be  removed  by 
extrinsic  evidence.25 

§  382.  Repugnancy.  It  is  a  well  established  rule,  that 
where  two  or  more  provisions  in  a  will  are  clearly  repugnant 
or  irreconcilable,  the  last  should  prevail,26  as  being  indica- 
tive of  the  testator's  latest  wish  ;27  yet  it  is  a  rule  that  is  only 
applied  in  cases  of  absolute  necessity,  as  where  the  provisions 
are  totally  inconsistent  with  each  other,  and  the  real  inten- 
tion of  the  testator  is  incapable  of  determination.28  A  prior 
provision,  however,  will  never  be  disturbed,  further  than  is  ab- 
solutely necessary  to  give  effect  to  a  subsequent  one,29  nor  will 
the  expression  of  a  particular  intent  be  sufficient  to  overcome 
the  manifest  general  intent.30  Thus,  where  the  first  clause 
absolutely  disposes  of  all  testator's  property,  a  subsequent 
clause  providing  for  the  distribution  of  a  fund  which  would 
or  might  at  some  future  time  accrue  to  his  estate  would  not 
affect  the  antecedent  general  disposition,  for  in  such  case,  no 
residuum  being  contemplated,  there  could  be  no  residuary 
legatees.31  Similarly,  where  there  is  a  devise  of  an  unlimited 
power  of  disposition  of  an  estate  in  such  manner  as  the  devise 

25  Whiternan  V.  Whitenian,  152  St.  167;  Bartlett  v.  King,  12  Mass. 
Ind.  263;  Patch  V.  White,  117  U.  542;  Thrasher  v.  Ingram,  32  Ala. 
S.  210;  Decker  V.  Decker,  121  111.  645;  Siceloff  v.  Redman,  26  Ind. 
341;    Merrick    v.   Merrick,   37   Ohio  251. 

St.    126.  29Ta?gart   r.   Murray,   53   N.   Y. 

26  Hamlin  V.  Express  Co.,  107  233;  Kenzie  v.  Roleson,  28  Ark. 
111.  443;  Fulton  v.  Hill,  41  Ga.  102;  Parker  v.  Parker,  13  Ohio  St. 
554;  Bradstreet  v.  Clarke,  12  Wend.  .   95;  Stickle's  Appeal,  29  Pa.  St.  234. 

(N.    Y.)     602;     Van    Nostrand    v.  30  Hamlin    V.    Express    Co.,     107 

Moore,  52  N.  Y.  12;  Evans  v.  Hud-  111.   443;    Bell   v.   Humphrey,   8   W. 

son,  6  Ind.  293;  Miller  v.  Flournoy,  Va.    1;    Cook   v.   Holmes,    11    Mass. 

26  Ala.  724;   Pickering  V.  Langdon,  528;   Pickering  v.  Langdon.  22  Me. 

22  Me.  430.  413;  Schott's  Estate,  78  Pa.  St.  40; 

27  Rountree  V.  Talbot,  89  111.  246.  Watson  v.  Blackwood,  50  Miss.  15; 
2SCovenhoven   r.  Shuler,  2  Paige  Miller  r.  Flournoy,  26  Ala.  724. 

(X.  Y.),  122;  Oxley  v.  Lane,  35  N.  31  Henning  v.  Varner,  34  Md.  102. 

Y.  340;   Newbold  v.  Boone,  52  Pa. 


wills.  467 

may  think  proper,  a  limitation  over  is  inoperative  and  void, 
by  reason  of  its  repugnancy  to  the  principal  devise.32 

Under  the  application  of  the  rule  that  a  will  should  be  so 
construed  as  to  effectuate  the  intention  of  the  testator  as  far 
as  possible,  express  words  must  sometimes  yield  to  the  other- 
wise manifest  intention,  and  words  will  even  be  added  where 
it  is  absolutely  necessary  to  avoid  absurdity  or  give  effect  to 
such  manifest  intention.33 

§  383.  Void  Devise  —  Descent  or  Purchase.  It  was  a 
maxim  of  the  common  law  that  title  by  descent  was  a  worthier 
or  better  title  than  one  accruing  by  purchase,  and  occasionally 
some  belated  American  court  announces  the  same  doctrine.34 
As  a  consequence  of  this  doctrine  a  rule  was  formulated  that  a 
devise  giving  exactly  the  same  estate  in  quantity  and  quality 
as  the  devisee  would  take  by  descent  if  the  devisee  had  not  been 
made,  is  void,  and  the  title  so  acquired  is  held  by  descent  and 
not  by  purchase.  This  rule,  it  would  seem,  still  obtains  in  a 
few  States.35 

This  was  one  of  the  subtleties  of  the  medieval  lawyers  and 
grew  out  of  the  legal  notions  involved  in  old  feudal  system. 
Under  that  system  there  was  but  one  heir,  and  that,  usually, 
was  the  oldest  or  only  son.  In  case  there  were  several  daugh- 
ters and  no  son  the  legal  fiction  was  preserved  and  they  all  took 
as  one  heir.  There  were  a  number  of  reasons  that  might  be 
assigned  for  such  a  rule  at  the  early  day  in  which  it  was  pro- 
mulgated,30 but  these  reasons  never  had  any  force  in  this  coun- 

32  Hamlin  r.  Express  Co.,  107  111.  3G  In  England  title  by  descent 
443.  Although  the  limitation  over  was  favored  by  the  courts,  first, 
might,  under  some  circumstances,  be-  because  land  in  the  hands  of  the 
come  effective  should  the  doner  of  heir  at  law  by  descent  was  charge- 
the  power  fail  to  exercise  it.  able   with   the   payment   of   the   an- 

33  Welsch  v.  Savings  Bank,  94  HI.  cestor's  debts,  and  then  again  he- 
191;  Wright  v.  Dunn,  10  Wheat.  cause  it  favored  the  right  of  escheat 
204;  Bartlett  V.  King,  12  Mass.  037;  upon  the  failure  of  heirs  on  the  part 
Ruston  v.  Ruston,  2  Dall.  244.  of    the    ancestor    from    whom    the 

34  Kellett  v.  Shepard,  139  111.  433.       lands      descended.     On     the      other 
•"-' Akiis    v.   Clark,    184    111.    13G;       hand,    land    acquired    by    purchase 

Biedler  v.  Biedler,  87  Va.  300.  was  not  liable  for  debts,  and  upon 


468  ABSTRACTS    OF    TITLE. 

try  while  the  rule  itself  has  been  abolished  in  England  by 
statute. 

Where  one  devises  property  to  his  heirs  it  is  but  fair  to 
presume  that  he  intended  they  should  take  the  property  under 
the  will,  and  in  furtherance  of  this  principle  the  rule  first 
stated  has  been  set  aside  in  a  majority  of  the  American  States, 
and  the  devisees  in  such  cases  held  to  take  by  purchase  and 
not  by  descent.37  Where,  however,  gifts  to  heirs  at  law  are 
made  to  them  simpliciter,  the  persons  to  take  and  the  propor- 
tions of  their  respective  shares  must  be  determined  by  the 
statutes  of  descent  and  distribution.38 

§  384.  Words  of  Grant.  As  in  deeds  so  in  wills,  there 
must  be  apt  words  of  grant  or  conveyance  or  words  indicative 
of  testamentary  intent,  but  any  form  of  expression  will  be 
sufficient  to  pass  title,  provided  the  intent  is  manifest.  "  Give," 
"  devise,"  or  "  bequeath "  are  the  words  commonly  in  use, 
and  all  or  either  will  be  sufficient  to  pass  real  estate,  though  the 
technical  word  for  this  purpose  in  a  properly  drawn  will  is 
"devise."  39  Words  of  advice,  desire,  recommendation,  etc., 
are  not  ordinarily  sufficient,40  although,  in  some  cases,  they 
may  be  sufficient  to  raise  trusts.41 

§  3S5.     Words  of  Purchase   and   Limitation.     In  pre- 

the  death  of  the  owner,  it  descended  devise  his  property,  and  as  they 
first  to  the  heirs  on  the  paternal  take  in  their  own  right,  the  distri- 
side,  and  upon  failure  of  such  hution  is  to  be  made  per  capita  and 
heirs,  then  to  the  heirs  on  the  not  per  stirpes:  Campbell  v.  Wig- 
part  of  the  mother.  Title  by  de-  gins,  1  Rice's  Ch.  (S.  C.)  10;  and 
scent  was  considered  the  worthier  see  Robinson  v.  Le  Grand,  65  Ala. 
title  and  where  the  will  gave  to  a  111. 

devisee  the  same  estate  in  quantity  38  Richards  v.  Miller,  62  111.  417. 
and  quality  which  he  would  have  39  Acceptance  of  a  devise  where  it 
taken  as  heir  at  law,  he  was  ad-  is  beneficial  to  the  devisee  and  at- 
judged  to  take  not  under  the  will,  tended  with  no  charge  or  risk,  is 
but  by  descent  or  operation  of  law.  always  presumed:  Brown  v.  Thorn- 
Donnelly  V.  Turner,  60  Md.  81.  dike,   15  Pick.  388. 

37  Gilpin  v.  Hollingsworth,  3  Md.  40  Gilbert    v.    Chapin,     19    Conn. 

190.     When  heirs  take  by  purchase  342;   Bohn  v.  Barret's  Ex'r,  79  Ky. 

they  do  not  take  as  heirs,  but  as  a  378. 

class  of  persons  to  whom  by  that  41  See  "  Precatory  Trusts  "  infra. 
means  the   testator   has   selected   to 


wills.  469 

paring  the  synopsis  of  wills,  the  attention  of  the  examiner  is 
particularly  directed  to  what  are  known  as  the  words  of  "  pur- 
chase "  and  "  limitation."  These  are  the  words  used  in  con- 
nection with  gifts'  to  specific  persons,  and  show,  as  in  case  of 
deeds,  the  nature  or  quality  of  the  estate  conveyed.  They 
consist  of  such  words  as  "  heirs,"  "  heirs  of  the  body,"  "  is- 
sue," etc.,  and  accordingly  as  the  word  is  used  may  be  either 
a  word  of  purchase  or  of  limitation.  Sufficient  of  the  con- 
text must  be  given  to  show  the  sense  in  which  the  word  is  em- 
ployed and  to  permit  a  proper  construction.  The  word  "  is- 
sue "  presents  the  largest  number  of  questions  and  has  been 
productive  of  an  almost  innumerable  number  of  decisions. 
As  a  word  of  limitation  it  is  collective,  and  signifies  all  the 
descendants  in  all  generations ;  but  as  a  word  of  purchase  it 
denotes  a  particular  person  or  class  of  persons  to  take  under 
the  devise.  The  term  may  be  employed  in  either  manner, 
as  will  best  effectuate  the  testator's  intention,  and  is  the  most 
flexible  word  that  can  be  used.42  Courts  more  readily  inter- 
pret the  word  "  issue  "  as  the  synonym  for  "  children,"  and 
as  a  mere  description  of  the  person  or  persons  to  take,  than 
they  do  the  words  "heirs  "  or  "  heirs  of  the  body."  43 

The  usual  and  ordinary  words  for  conveying  a  fee  simple 
in  wills  as  well  as  in  deeds,  are  "  heirs,"  or  "  heirs  and  as- 
signs forever ;"  but  a  devise  to  a  man  "  forever,"  or  to  one 
"  and  his  assigns  forever,"  or  to  one  in  "  fee  simple,"  will 
pass  an  estate  of  inheritance  to  the  devisee,  notwithstanding 
the  omission   of  the   legal  words   of  inheritance,44   while  the 

42Timanus  v.  Dugan,  46  Md.  402;  is  a  word  of  limitation  and  not 
Daniel  v.  Whartenby,  17  Wall.  639.  of  purchase,  unless  the  contrary- 
Words  in  the  introductory  or  other  clearly  appears :  2  Jarm.  on  Wills, 
parts  of  a  will  indicating  an  inten-  328. 

tion  of  the  testator  to  dispose  of  his  44  Coke  Lit.  9  b;   2  Black.   Com. 

whole   estate,   although   not    conclu-  108;  Meyers  v.  Anderson,  1  Strobh. 

sive  that  he  intends  to  pass  a   fee,  Eq.  (S.  C.)  344;  Timanus  v.  Dugan, 

always     favor     such     construction:  46    Md.    402;    Tatura    v.    McClellan, 

Geyer   v.    Wentzel,    68    Pa.    St.    84;  50   Miss.    1;    Wetter   v.   Walker,  62 

Fearing  v.  Swift,  97  Mass.  413.  Ga.    142;    Edwards   V.   Barnard,   84 

43  In  England  the  word  "  issue  "  Pa.  St.  184. 


470  ABSTRACTS    OF    TITLE. 

statute,  in  a  majority  of  the  States,  will  compensate  for  the 
deficiency  and  give  to  the  devisee  an  estate  in  fee,  none  other 
being  mentioned.45 

Questions,  as  to  whether  a  devisee  takes  the  fee  or  a  lesser 
estate,  occur  most  frequently  where  the  testator  in  his  anxiety 
to  make  his  gift  effective  makes  several  bequests  in  the  alter- 
native, or  limits  one  estate  upon  another,  and  are  usually  to  be 
decided  by  the  application  of  the  rule  in  Shelly's  case  as  modi- 
fied by  local  law.  ZSTo  rule  of  general  application  can  be  for- 
mulated, and  from  a  review  of  the  reported  cases  on  thus  sub- 
ject one  can  well  appreciate  the  remark  of  a  learned  writer, 
that,  "  the  liberality  of  the  law  in  construing  wills  has  opened 
the  flood-gates  of  legal  chaos."  46  It  would  seem,  however, 
that  whenever  the  intention  of  the  testator  can  be  ascertained 
it  will  overcome  all  technical  rules,47  and  this  intention  turns, 
not  upon  the  quantity  of  interest  given  to  the  first  taker  or 
person  specified,  but  upon  the  nature  of  the  estate  intended 
to  be  given  to  the  "  heirs."48 

§  386.  The  Rule  in  Shelly's  Case.  Though  entailed 
estates  are  no  longer  permitted,  the  rule  in  Shelly's  case  still 

45Leiter  v.  Sheppard,  85  111.  243;  448;  Baker  r.  Scott,  62  111.  90;  But- 
McConnell  v.  Smith,  23  111.  617;  ler  v.  Huestis,  68  111,  601.  The  de- 
Mirfltt  v.  Jessop,  94  111.  158.  The  cisions  of  the  local  courts  will  fur- 
statute  very  generally  enacted  nish  the  best  guide  for  construing 
throughout  the  Union  provides,  sub-  estates  under  wills,  as,  between  the 
stantially,  that  every  estate  in  lands  States,  diametrically  opposed  views 
which  shall  be  granted,  conveyed  or  will  frequently  be  met  with  on  the 
devised,  although  other  words  here-  same  admitted  facts, 
tofore  necessary  to  transfer  an  es-  48  Baker  v.  Scott,  62  111.  90;  4 
tate  of  inheritance  be  not  added,  Kent.  Com.  221.  The  rule  in  Shel- 
shall  be  deemed  a  fee  simple  estate  ly's  case,  that  is,  the  technical  ap- 
of  inheritance,  if  a  less  estate  be  plication  of  the  words  "  heir "  and 
not  limited  by  express  words,  or  do  "  heirs,"  is  not  now  received  in  all 
not  appear  to  have  been  granted,  its  original  vigor,  from  the  fact  that 
conveyed  or  devised  by  construe-  it  often  operates  to  defeat  the  tes- 
tion  or  operation  of  law.  tator's     intention,    -and     in     many 

46  O'Hara  on  Wills,  27,  and  see  States  it  is  regarded  of  no  especial 
Clark  v.  Boorman's  Ex'rs,  18  Wall.  force  except  as  an  aid  to  eonstruc- 
493.  tion  and  intention:    Blake  v.  Stone, 

47  Goodrich  v.  Lambert,  10  Conn.  27  Vt.  475. 


"WILLS. 


471 


has  a  modified  force,  and  is  often  invoked  in  the  construction 
of  devises  to  determine  the  operation  of  the  will  and  settle 
conflicting  claims.  This  rules  provides  that,  where  the  an- 
cestor takes  an  estate  of  freehold,  and  in  the  same  gift  or 
conveyance,  an  estate  is  limited,  either  mediately  or  immedi- 
ately to  his  heirs,  either  in  fee  or  in  tail,  the  term  "  heirs  " 
is  a  word  of  limitation  and  not  of  purchase,49  and  when  ap- 
plied to  wills  is  ordinarily  confined  to  cases  in  which  the  re- 
mainder is  limited  in  terms  to  the  "  heirs  "  and  not  to  "  chil- 
dren "  or  "  issue."  50  When  invoked,  as  a  rule,  it  is  not  a 
real  exception  to  the  fundamental  doctrine  that  the  inten- 
tion of  the  testator  must  guide  in  interpreting  a  will ;  it  merely 
sacrifices  a  particular  intent  to  a  general  intent.  It  does  not 
interpret  a  will,  but  takes  effect  when  the  interpretation  has 
been  ascertained.51 

§  387.     Interpretation     of     Particular     Words     and 
Phrases.     Though  the  testator  is  presumed  to  use  technical 


49  Baker  v.  Scott,  62  111.  90;  Es- 
tate of  Utz,  43  Cal.  200. 

50  Akers  v.  Akers,  23  N.  J.  Eq. 
26;  Estate  of  Utz,  43  Cal.  200.  But 
see,  Haley  v.  Boston,  108  Mass. 
576.  The  word  "  children "  in  its 
usual  sense  is  a  word  of  purchase 
and  not  of  limitation,  and  is  al- 
ways to  be  so  regarded  unless  the 
testator  has  unmistakably  used  it 
otherwise:  Stump  V.  Jordan,  54 
Md.  631;  2  Wash.  Real  Prop.  (4th 
Ed.)  603.  While  not  infrequently 
the  word  "  heirs,"  or  even  the 
words  "  heirs  and  assigns  forever  " 
are  held  not  to  operate  as  words  of 
limitation  because  corrected  or  ex- 
plained by  words  which  follow  and 
which  are  irreconcilable  with  the 
notion  of  descent:  Shreve's  Case, 
43  Md.  399. 

51  YarnalFs  Appeal,  70  Penn.  St. 
335.     Greater   latitude,   however,   is 


given  in  the  construction  of  wills 
than  in  that  of  deeds,  and  courts 
will  look  to  the  whole  will.  Thus, 
the  rule  as  stated  in  the  text,  while 
of  general  controlling  efficacy  in 
deeds,  where  it  may  usually  be 
safely  applied,  is  subject  to  a  wide 
latitude  in  wills,  and  while  in 
some  States  it  may  be  rigidly  en- 
forced, in  the  majority,  when 
explanatory  words  are  found  in 
the  will  showing  the  intention  of 
the  testator  that  the  words  "  heirs," 
or  "  heirs  of  the  body "  are  em- 
ployed to  show  that  such  persons 
shall  take  under  the  devise  as  a 
description  of  persons,  they  will 
be  treated  as  words  of  purchase 
and  not  of  limitation:  Butler  v. 
Huestis,  68  111.  594.  When  such 
appears  to  be  the  testator's  inten- 
tion "  heirs  "  have  been  construed 
to  mean  "  children." 


472  ABSTRACTS    OF    TITLE. 

words  according  to  their  technical  meaning,52  tills  can  hardly 
be  asserted  as  a  rule,  or  should  it  be  so  asserted,  it  must  be 
taken  subject  to  that  other  all  powerful  rule  that  the  inten- 
tion of  the  testator  must  prevail.53  The  construction  of  words 
in  a  will  is  much  less  technical  than  that  of  the  same  words 
in  a  deed,  for  though  in  deeds  effect  will  always  be  given  to 
the  true  intention  of  the  parties,54  yet  the  words  employed  gov- 
ern such  intention,  while  in  a  will  the  intention,  in  one  sense, 
governs  the  words.55  The  use  of  the  word  "  descend,"  does  not 
operate  to  work  a  descent  in  the  legal,  strict  sense  of  the  term, 
as  inheritance  is  only  through  operation  of  law ;  its  employ- 
ment, therefore,  unless  some  other  meaning  is  apparent,  is  to 
be  taken  as  indicating  the  desire  of  the  testator  that  his  prop- 
erty shall  follow  the  same  channel  into  which  the  law  would 
direct  it.5G  "  Children  "  is  generally  taken  in  its  primary  and 
strict  signification,  and  does  not  include  grandchildren,57  un- 
less there  is  something  in  the  context  to  show  that  the  testator 
intended  to  include  grandchildren,  or  unless  such  construction 
is  necessary  to  render  the  provisions  of  the  will  operative.58 
"  Issue  "  means  heirs  of  the  body.59  "  Heirs,"  as  a  rule,  means 
statutory  heirs,  of  every  kind  and  degree,60  but  under  cer- 
tain circumstances  may  be  confined  to  children.61  The  words 
"  next  of  kin  "  limit  the  devise  to  blood  relations,  and  do  not 

52  France's  Estate,  75  Perm.  St.  31  Perm.  St.  94;  Cummings  V. 
220.  Plummer,  94  Ind.  403. 

53  Smyth  V.  Taylor,  21  111.  296;  58  Feit  v.  Vanata,  21  N.  J.  Eq. 
Heuser  V.  Harris,  42  111.  425;  84;  Houghton  V.  Kendall,  7  Allen 
Meade  v.  Jennings,  46  Mo.  91;  (Mass.),  72.  The  words  "children 
Robertson  v.  Johnson,  24  Ga.  102.  forever"    in    a    devise,    when    con- 

54  Peckham  v.  Haddock,  36  111.  strued  with  the  context,  were  held 
38;  Churchill  v.  Reamer,  8  Bush  to  be  words  of  inheritance,  and  to 
(Ky. ),  256.  have    been    used    in    the    sense    of 

55  Edwards  v.  Bibb,  43  Ala.  666 ;  heirs.  See  Moran  V.  Dillehay,  8 
Brownfield  V.  Wilson.  78  111.  467.  Bush   (Ky.),  434. 

56  Dennett  V.  Dennett,  40  N.  H.  59  Kleppner  v.  Laverty,  70  Penn. 
498.  St.  70. 

57Hopson  ».  Commonwealth,  etc.,  60  Richards  V.  Miller,  62  111.  417. 

7  Bush    (Ky.),  644;   Moffat  v.  Car-  61  Butler  v.  Huestis,  68  111.   594. 

row,  7  Paige,  328;  Gernet  v.  Lynn,        Where  the  context  shows  that  the 


wills.  473 

include  husband  or  wife,02  unless  accompanied  by  other  words 
clearly  manifesting  a  purpose  to  extend  their  signification.03 
The  term  "  relatives  "  contains  no  elements  of  legal  certainty.64 

There  are,  however,  no  arbitrary  or  unbending  rules  in  the 
construction  of  the  words  of  a  will.  Xo  two  wills  are  in  all 
respects  alike.  Where  the  same  precise  form  of  expression 
occurs  as  may  have  been  the  subject  of  some  former  adjudica- 
tion, unaffected  by  any  indication  of  a  different  intention  in 
other  parts  of  the  instrument,  the  courts,  with  a  view  to  cer- 
tainty and  stability  of  titles,  will  follow  the  precedent ;  yet, 
the  cardinal  canon  still  holds  good,  that  the  intention  of  the 
testator  of  each  will  separately  is  to  be  gathered  from  its  own 
four  corners,05  and  where  the  intention  satisfactorily  appears 
it  should  prevail  over  any  artificial  rule  of  construction.00 

§  388.  Words  Which  Pass  Real  Estate.  Sometimes 
wills  contain  no  specific  allusions  to  land,  or  particular  be- 
quests may  be  made  in  general  terms,  and  in  such  cases  grave 
questions  of  construction  may  arise  when  real  estate  is  claimed 
under  them.  The  liberality  of  courts  is  nowhere  more  mani- 
fest than  in  the  solution  of  these  questions.  The  words  "  prop- 
erty "  and  "  estate  "  when  used  in  a  general  sense,  are  always 
held  sufficient  to  embrace  all  the  testator's  property,  real  as 
well  as  personal,07  but  when  coupled  with  directions  applicable 
only  to  personalty,  they  will  not  have  this  effect,  nor  where 

testator  used  the  words  "  heirs  "  in  66  Kennedy  v.   Kennedy,    105   111 

the  sense  of  children,  it  will  be  so  350;  Suydam  V.  Thayer,  94  Mo.  49 
construed:       Haverstick's      Appeal,  6  7  Fogg  v.   Clark,    1    N.   H.    163 

103  Pa.  St.  394;  Hinton  v.  Milburn,  Jackson  v.  Housel,   17   Johns,  281 

23  W.   Va.    166.  Wheaton  V.  Andress,  23  Wend.  452 

62Townsend   v.   Radcliffe,  44    111.  Hunt    V.    Hunt,    4    Gray     (Mass.) 

446;    Murdoek   v.   Ward,    67    N.   Y.  190;    Korn  v.   Cutler,   26   Conn.   4 

387;  Tillman  v.  Davis,  95  N.  Y.  17.  Monroe  v.  Jones,  8  R.  I.  526.     This 

63  Haraden  v.  Larrabee,  113  Mass.  is  directly  contrary  to  the  earlier 
430.  and  more  technical  rule,  which  con- 

64  Handley  v.  Wrightson,  60  Md.  fined  these  words  entirely  to  per- 
198.  sonalty  unless  there  was  something 

65  Provenchere's  Appeal,  67  Penn.  in  the  context  to  show  that  the 
St.  463.  testator   intended    a   more   enlarged 

meaning. 


47-i  ABSTKACTS    OF    TITLE. 

subsequent  particulars  clearly  indicate  that  the  testator  had 
only  personalty  in  contemplation.08  The  word  "  effects," 
though  savoring  strongly  of  personalty  69  may,  when  the  con- 
text clearly  shows  the  intention,  as  when  used  in  connection 
with  the  word  "  real,"  70  be  sufficient  to  pass  land.71  "  Goods," 
according  to  its  natural,  grammatical,  and  ordinary  meaning, 
does  not  include  lands.  General  usage  has  given  it  a  meaning 
as  consisting  of  personalty  only,  and  this  is  its  primary  legal 
signification.72  The  context  may  sometimes  enlarge  this  mean- 
ing, and  where  it  satisfactorily  appears  that  the  testator  in- 
tended to  use  the  word  in  a  different  and  more  comprehensive 
sense,  so  as  to  embrace  real  estate,  courts  will  give  effect  to 
that  intent.  The  phrase,  "  all  my  worldly  goods,"  if  used 
without  specific  enumeration,  may  reasonably  be  supposed  to 
embrace  lands,  and  in  some  instances  has  been  so  construed; 
but  if  attempt  is  made  at  designation  the  restricted  meaning 
implied  from  such  designation  will  prevail.73 

The  question  will  frequently  occur  in  constructions  of  the 
bequest  of  the  residuum,  and  courts  seem  inclined  to  favor  any 
construction  which  will  avoid  even  a  partial  intestacy.74 

Yet  while  no  particular  words  are  necessary  to  pass  real 
estate,  enough  must  appear  to  evidence  the  intention  to  con- 
vey, and  wrords  can  not  be  supplied  to  meet  the  deficiency, 
even  though  they  may  have  been  omitted  by  what  might  seem 
to  be  palpable  error,75  and  where  specific  mention  is  made  of 

68  Smith    v.   Hutchinson,    51    Mo.  of,"   etc.,   the   enumeration    describ- 

83.  ing  only  personalty;  real  estate  not 

09  Indeed,  this  term  when  used  in  specifically   mentioned   or   otherwise 

a    will,    is    generally    construed    to  referred  to  will  not  pass, 

refer     to     personalty     only,     unless  74  Vernon    V.    Vernon,    53    N.    Y. 

there   is   everything  in   the   context  351;    Cate  V.  Cranor,   30   Ind.  292; 

to   require   a   more   extended   appli-  Damon  v.  Bibben,  135  Mass.  458. 

cation.  75  As  where  testator,   after  rnak- 

70  As,  "  all  my  effects,  real  and  ing  certain  bequests  and  devises, 
personal."  gave  "  all  the  rest  of  my  estate  — 

7 1  Paige  v.  Foust,  89  N.  C.  447.  personal "  to  his  four  sons,  and  in 

72  Farish  v.  Cook,  78  Mo.  212.  a   codicil   stated   that   he   had   dis- 

73  As  where  testator  bequeaths  posed  of  his  "  estate,  real  and  per- 
"  all   my   wordly   goods,    consisting  sonal,"   to   said    sons,    and   revoked 


WILLS.  4  7  5 

certain  property,  other  property  not  alluded  to  or  covered  by 
general  terms  will  not  pass.70 

§  389.  Limitations  and  Remainders.  A  large  part  of 
the  litigation  arising  out  of  testamentary  conveyances  is  oc- 
casioned by  questions  relative  to  the  construction  of  limita- 
tions and  remainders.  The  subject  has  been  incidentally  dis- 
cussed in  several  of  the  preceding  paragraphs,  and  in  addition 
to  what  has  been  there  said,  but  little  can  be  stated  without 
entering  into  the  matter  at  greater  length  than  the  exigencies 
of  this  chapter  will  permit.  Local  statutes  are  very  effective 
in  the  settlement  of  such  questions,  so  far  as  the  validity  of 
the  remainder  limited  is  concerned,  as  well  as  the  persons  who 
take,  when  particular  words  are  accorded  a  statutory  defini- 
tion. 

All  words  of  purchase,  as  "  children,"  77  "  issue,"  etc.,  cre- 
ate remainders  according  to  their  import,  while  "  heirs  "  when 
construed  as  a  word  of  purchase,  designates  not  only  the  per- 
sons who  are  to  take,  but  also  the  manner  and  proportions  in 
which  they  take.7S  The  utmost  liberality  is  displayed  in  the 
reported  decisions  construing  remainders,  and  the  circumstance 
that  the  first  taker  has  it  in  his  power  to  dispose  of  the  whole 
estate  and  thus  defeat  a  limitation  over,  is  not  of  itself  con- 
clusive that  the  expectant  estate  is  void,  when  a  contrary  in- 
tention appears  from  the  will.79  The  intention  of  the  testator 
must,  in  all  cases,  be  carried  out  when  such  intention  can  be 
ascertained  from  the  language  employed  by  the  will,  and  in 
no  case  can  the  intention  thus  ascertained  be  defeated  by  a 
technical  construction  of  the  language  so  employed.80 

the  share  left  to  a  certain  son,  held,  78  Rand  V.  Sanger,  115  Mass.  124. 

that  the  court  could  not  supply  the  The   rules   of   descent  in   such   case 

words    "  real     and "    before    "  per-  are    presumed   to    be    the    intended 

sonal  "  in  the  will,  and  that  testator  guide. 

died  intestate  as  to  his  real  estate,  79  Terry  V.  Wiggins,  2  Lans.   (N. 

except  a  portion  by  another  clause  Y.)   272;  Burleigh  v.  Clough,  52  N. 

specifically     devised.       Graham     v.  H.   2G7.     Compare   Clark   v.   Tenni- 

Graham,  23  '">.'.  Va.  36.  son,  3.3  Md.  85. 

76  Farish  v.  Cook,  78  Mo.  212.  so  Terry  v.  Wiggins,  2  Lans   (N. 

77Beacroft  v.  Strawn,  67  111.  28.  Y.),  272. 


476  ABSTRACTS    OF    TITLE. 

Limitations  to  survivors  have  produced  a  vast  amount  of 
litigation,  but  the  questions  arising  under  such  a  devise  may 
now  be  considered  as  well  settled,  and  the  general  rule  seems 
to  be  that  the  word  "  survivor  "  is  to  be  taken  in  its  natural 
and  literal  import,  unless  the  context  plainly  indicates  a  dif- 
ferent intention,  and  should  not  be  construed  as  equivalent  to 
the  word  "  other."  81  Where  the  courts  have  given  the  word 
"  survivor  "  the  force  of  "  other,"  it  has  been  done  to  avoid 
some  consequence  which  it  was  very  certain  the  testator  could 
not  have  intended.82 

§  390.  Devise  to  a  Class.  It  is  a  rule  of  the  common  law 
that  a  devise  to  a  class  of  persons  takes  effect  in  favor  of  those 
who  constitute  the  class  at  the  death  of  the  testator,  that  being 
the  time  when  the  will  first  speaks.  But  this  rule  has  been 
greatly  modified  in  many  States,  so  that  when  an  estate  is  de- 
devised  to  the  children  or  other  relatives  of  the  testator,  the 
lineal  descendants  of  a  devisee,  who  dies  before  the  testator, 
take  the  share  of  their  ancestor.83  In  the  absence  of  such  a 
statute,  however,  the  common  law  prevails  and  only  those  who 
are  living  at  the  time  the  devise  takes  effect  are  entitled  to 
participate.  Those  who  die  before  the  gift  becomes  effective 
are  not  regarded  as  ever  having  belonged  to  the  class,  and  the 
whole  estate  inures  to  the  survivors. 

§  ■  391.  Gift  of  the  Income  of  Realty.  It  is  well  settled 
that  a  gift  of  the  income  of  land  or  of  the  "  rents  and  profits," 
or  "  benefits  "  is,  in  effect,  a  gift  of  the  land  itself.S4  Those 
to  whom  the  testator  has  given  the  income  for  life  will  take 
a  life  estate,  and  those  to  whom  he  has  given  the  perpetual  in- 
come will  take  a  fee  simple  estate.85     Such  gift,  however,  to 

81  This  is  the  construction  which  119;    Martin    V.    Kirby,    11    Gratt. 

now   obtains   both   in   England   and  (Va. )   67. 

the  United  States:   2  Jar.  on  Wills,  83  Jamieson  v.  Hay,  46  Mo.  546; 

648;  2  Redf.  on  Wills,  *372.  Smiley  v.  Bailey,  59  Barb.  80;   Ru- 

82Leeming    v.    Sheratt,    2    Hare  dolph   r.   Rudolph,  207   111.   266. 

(Eng.),   14;   2  Jar.  on  Wills,  658;  s 4  Johnson   v.   Johnson,   92   Tenn. 

Consult  Passmore's  Appeal,   23   Pa.  559. 

St.  381;  Moore  v.  Lyons,  25  Wend.  .      85  Reed  v.  Reed,  9  Mass.  372;  But- 


wills.  477 

accomplish  this  purpose  must  be  without  qualification  or  re- 
striction, and,  in  order  to  determine  whether  there  is  such 
qualification  or  restriction,  recourse  must  be  had  to  the  whole 
will,  with  the  view  of  ascertaining  the  sense  in  which  the  terms 
were  used  by  the  testator.  When  it  appears  from  other  parts 
of  the  will  that  the  fee  is  otherwise  disposed  of,  such  terms 
can  not  be  held  to  convey  the  fee.86 

§  392.  Devise  with  Power  of  Disposition.  Where  an 
estate  is  given  to  a  person  generally  or  indefinitely,  with  a 
power  of  disposition,  it  carries  the  fee,  unless  the  testator 
gives  to  the  first  taker  an  estate  for  life  only,  and  annexes  a 
power  of  disposition  of  the  reversion.  In  that  case,  the  express 
limitation  for  life  will  control  the  operation  of  the  power,  and 
prevent  it  from  enlarging  the  estate  to  a  fee.  This  is  the  doc- 
trine laid  down  by  Kent.87  and  the  English  writers,ss  and 
substantially1  followed  by  later  American  decisions.89  The 
question  often  arises  where  life  estates  are  created  by  implica- 
tion, as  where  the  testator  devises  property  generally,  without 
a  specification  of  the  quantity  of  interest,  and  adds  some  power 
of  disposition  with  a  remainder  or  limitation  over.  In  such 
case,  where  an  absolute  power  of  disposition  is  annexed  to  the 
gift,  a  limitation  over  is  of  no  effect,90  but  where  the  power  of 
disposal  is  not  an  absolute  power,  but  a  qualified  one,  condi- 
tioned upon  some  certain  event  or  purpose,  and  there  is  a 
remainder   or   devise   over,    the   words   last   used   restrict   and 

terfield  v.  Haskins,  33  Me.  392 ;  Earl  Smith  v.  Bell,  6  Pet.  68 ;  Gifford  v. 

V.    Rowe,    35    Me.    414;    Collier    v.  Choate,    100    Mass.    346;     Burleigh 

Grimsey,  36  Ohio  St.  17;  Drusadow  v.  Clough,  52  N.  H.  267;  Jackson  v. 

v.  Wilde,  63  Pa.  St.  170;  Morgan  v.  Bobbins,    16    Johns,    537;    Ayer    v. 

Pope,  7  Coldw.   (Tenn.)   541.  Ayer,    128    Mass.    575;    Downey    v. 

so  Collier  v.  Grimsey,  36  Ohio  St.  Borden,    36   N.   J.    L.   460;    Benker 

17;     Morgan     v.     Pope,     7     Coldw.  v.    Jacoby,    36    Iowa,    273;,  Hamlin 

(Tenn.)  541.  v.  Express  Co.,  107  111.  443. 

87  4  Kent  Com.  *535.  90  Rand   v.   Meir,   47    Iowa,   607 ; 

88  Cruise  Dig.  tit.  §  38,  c,  13,  §  5;  Seigwald  V.  Seigwald,  37  111.  430; 
Jar.  on  Wills  (Bigelow) ,  *873.  Roseboom    v.    Roseboom,    81    N.    Y. 

8'J  Ramsdell   v.   Ramsdell,   21   Me.       356. 
288;    Jones   v.    Bacon,   68    Me.    34; 


478  ABSTKACTS    OF    TITLE. 

limit  the  words  first  used,  and  reduce  what  was  apparently  an 
estate  in  fee  to  an  estate  for  life  only.91 

Where  there  is  a  devise  for  life,  in  express  terms,  a  power 
of  disposal  annexed  can  not  enlarge  it  to  a  fee ;  92  nor  is  it 
opposed  to  any  rule  of  law  to  create  a  life  estate  with  a  power 
to  sell  and  convey,  and  limit  a  remainder  after  its  termina- 
tion.93 To  satisfy  the  doubts  that  must  naturally  arise  in  con- 
struing devises  of  this  character,  it  is  necessary  that  the  entire 
clause  relating  to  the  devise  be  substantially,  and  in  many  cases 
literally,  set  forth,  and,  as  the  construction  will  often  be  in- 
fluenced by  other  parts  of  the  instrument,  a  corresponding  treat- 
ment will  be  required  of  all  such  portions  as  directly  or  in- 
directly concern  the  particular  devise  under  consideration. 

A  conveyance  by  a  devisee  for  life,  but  with  an  absolute 
power  of  disposal  of  the  reversion,  will  vest  in  the  grantee 
of  such  devisee  an  estate  in  fee,94  while  in  case  the  power 
has  not  been  exercised,  the  land,  on  the  death  of  such  devisee, 
goes  to  the  heirs  of  the  devisor.95  An  important  distinction 
will,  however,  be  observed  between  an  absolute  and  uncondi- 
tional power  of  disposal  in  the  discretion  of  the  devisee  and 
a  power  restricting  the  disposition  both  as  to  time  and  man- 
ner. The  devise  of  an  estate  for  life,  with  authority  in  the 
devisee  to  dispose  of  the  land  by  last  will  and  testament,  does 
not  convey  absolute  ownership,96  nor  would  the  further  fact 
that  the  will  devising  same  charged  the  payment  of  the  debts 

91  Stuart  v.  Walker,  72  Me.  145;  Welsch  v.  Savings  Bank,  94  111.  191; 
Merrill  v.  Emery,  10  Pick.  512;  Jassey  v.  VvThite,  28  Ga.  295;  Dow- 
Jar,  on  Wills  (Bigelow),  -'879.  A  ney  V.  Borden,  3G  N.  J.  L.  4G0.  A 
devise  with  power  of  disposition,  different  rule  prevails  in  some 
although  providing  for  an  ultimate  States:  See  Hazel  v.  Hagan,  47 
remainder   of   what    remains   undis-  Mo.  277. 

posed   of  at   the   death   of  the   first  94  Funk  v.  Eggleston,  92  111.  515; 

taker,  will  vest  a  fee,  or  a  right  to  Hazel  V.  Hagan,  47  Mo.  277;    Levy 

convey  in  fee:    Lyon  v.  Marsh,   116  v.  Griffiths,  65  N.   C.  236;   Lyon  V. 

Mass.  232.  Marsh,  116  Mass.  232. 

92  Hamlin  v.  Express  Co.,  107  111.  95  Fairman  v.  Beal,  14  111.  244. 
443.  96  Bryant  v.  Christian,  58  Mo.  98; 

93  Ward  v.  Amory,  4  Curtis,  425;  and  see  Terry  v.  Wiggins,  2  Lans. 
Jar.    on    Wills     (Bigelow),     *873;  (N.  Y.)    272. 


WILLS. 


479 


on  the  devisee  be  sufficient  to  enlarge  the  life  estate  to  a  fee 
simple.9'  The  right  of  testamentary  disposition  is  a  mere 
power,  and  though  the  authorities  are  not  altogether  harmoni- 
ous as  to  the  right  of  the  devisee  to  exercise  such  power  by 
deed,  it  would  yet  seem  that  a  warranty  deed  in  fee  simple, 
executed  by  the  devisee,  which  made  no  reference  to  the  will 
by  which  the  power  of  disposition  was  given,  and  contained  no 
evidence  of  an  intention  to  execute  the  power,  conveys  only  the 
life  estate  of  the  devisee.98  The  question  seems  to  turn  upon 
the  fact  of  intention  in  the  donee  of  the  power  to  execute  it, 
and  when  there  are  co-existing  interests,  one  within  and  the 
other  without  the  power,  it  would  seem  that  the  intention  to 
execute  the  power,  whether  by  deed  or  will,  must  be  apparent 
and  clear,  but  that  intention,  however  manifested,  whether  di- 
rectly or  indirectly,  positively  or  by  just  implication,  will, 
when  established,  render  a  conveyance  by  the  devisee  valid  and 
operative.99  Xo  state  of  facts,  in  an  examination  of  title,  pre- 
sents graver  questions,  or  questions  more  difficult  of  solution. 

9  7  Dunning  r.  Van  Dusen,  47  Ind.  learned  and  able  opinion  by  Baker, 
423;  Jassey  v.  White,  2S  Ga.  295;  J.  The  fundamental  principle  de- 
Jar,  on  Wills   (Bigelow) ,  *873.  ducible   from  the  English   decisions 

98  Dunning  v.  Van  Dusen,  47  Ind.  is  that  there  should  be  a  certain 
423;  Funk  v.  Eggleston,  92  111.  515.  ascertainment  of  the  intention  of 
It  may  be  laid  down  as  a  general  the  donee  of  the  power  to  act  un- 
rule,  that  in  all  cases  where  by  the  der  the  power.  Three  classes  of 
terms  of  the  will  there  has  been  an  cases  arose  in  which  it  was  dem- 
express  limitation  of  an  estate  to  onstrated  to  an  absolute  moral 
the  first  taker  for  life,  and  a  limita-  certainty  there  was  an  intention  to 
tion  over,  any  general  expressions  execute  the  power,  and  these  were, 
apparently  giving  the  tenant  for  (1,)  when  there  was  a  reference  to 
life  an  unlimited  power  over  the  the  power;  or  (2.)  to  the  subject  or 
estate,  but  which  do  not  in  express  property  covered  by  the  power ; 
terms  do  so,  must  be  regarded  as  or  (3,)  when  the  instrument  would 
referring  to  the  life  interest  only,  be  inoperative  without  the  aid  of 
and,  therefore,  as  limited  by  such  the  power.  The  cases  ranging 
interest :  Welsch  v.  Bellville  Savgs.  themselves  in  one  or  the  other  of 
Bank,  94  111.  191.  these    three    classes,    it    was    judi- 

99  Funk  v.  Eggleston,  92  111.  515.  cially  announced  in  some  of 
In  this  case,  the  subject  of  a  devise  the  cases  that  there  could  be  no 
for  life  with  power  of  disposition,  execution  of  a  power  unless  the 
la    very    exhaustively    treated    in    a  case    fell    in    one    or    the    other   of 


480 


ABSTRACTS    OF    TITLE. 


§  393.  Indeterminate  Devise.  Owing  to  the  liberal 
construction  now  accorded  to  wills  as  well  as  sweeping  statu- 
tory enactments  relative  to  the  limitation  of  estates,  fewer 
questions  will  now  arise  in  regard  to  the  quantity  or  duration 
of  estates  than  formerly.  Wills  drawn  by  the  testator,  or  holo- 
graphic wills,  frequently  fail  to  express  clearly  such  testator's 
intentions,  and  as  they  are  usually  copied  from  the  ever  ready 
"  form  book  "  and  adapted  to  his  wants,  they  not  infrequently 
fail  to  expressly  define  the  nature  or  extent  of  the  estate  he 
seeks  to  convey.     A  devise  indeterminate  in  its  terms  and  with- 


these  three  classes.  See  Sir  Edward 
Clere's  case,  6  Coke,  17;  Standen  V. 
Standen,  2  Ves.  Jr.  589.  But  in 
furtherance  of  the  general  rule 
that  the  intention  of  the  testator 
(in  case  of  disposition  by  will)  is 
the  pole  star  to  guide  in  the  inter- 
pretation, the  English  rule,  which 
requires  the  existence  of  one  of  the 
three  elements  above  enumerated, 
is  made  altogether  subordinate  and 
secondary  in  its  character,  and  if 
circumstances  arise  that  indicate 
clearly  the  intention  of  the  donee 
to  work  by  the  power,  the  artificial 
rule,  predicated  upon  former  expe- 
rience, must  give  way,  and  the 
primary  and  fundamental  rule, 
which  requires  only  that  the  inten- 
tion must  be  clear  and  manifest, 
will  prevail.  "  The  main  point," 
says  Mr.  Justice  Story  (Blagge  V. 
Miles,  1  Story,  427),  "is  to  arrive 
at  the  intention  and  object  of  the 
donee  of  the  power  in  the  instru- 
ment of  execution,  and  that  being 
once  ascertained,  effect  is  given  to 
it  accordingly.  If  the  donee  in- 
tends to  execute,  and  the  mode  be 
in  other  respects  unexceptionable, 
that  intention,  however  manifest- 
ed, will  make  the  execution  valid 
and   operative."     But  the  intention 


must  be  clear  and  apparent,  so  that 
the  transaction  is  not  fairly  sus- 
ceptible of  any  other  interpretation. 
If  it  be  doubtful,  under  all  the  cir- 
cumstances, then  the  doubt  will 
prevent  it  from  being  deemed  an 
execution  of  the  power:  Blagge  v. 
Miles,  1  Story,  427 ;  Dunning  V. 
Van  Dusen,  47  Ind.  423.  Kent 
says,  with  reference  to  the  execu- 
tion of  powers :  "  The  power  may 
be  executed  without  reciting  it,  or 
even  referring  to  it,  provided  the  act 
shows  that  the  donee  had  in  view 
the  subject  of  the  power."  The  gen- 
eral rule  of  construction,  both  as  to 
deeds  and  wills,  is  that,  if  there 
be  an  interest  and  a  power  existing 
together  in  the  same  person  over 
the  same  subject,  and  an  act  be 
done  without  particular  reference  to 
the  power,  it  will  be  applied  to  the 
interest,  and  not  to  the  power.  4 
Kent,  Comm.  (12th  Ed.)  p.  334;  2 
Wash.  Eeal  Prop.  *325,  §  33.  The 
subject  of  the  execution  of  powers 
is  exhaustively  examined  in  Blagge 
V.  Miles,  1  Story,  427.  The  follow- 
ing cases  are  also  in  point:  Jones 
r.  Wood,  Ifi  Pa.  St.  25;  Towles  V. 
Fisher.  77  X.  C.  4o7:  Erunswick  B 
Crossman,  7G  Me.  577. 


WILLS.  481 

out  words  of  limitation,  which,  standing  alone  and  unaided  by 
statute,  would  create  only  an  estate  for  life,  will  generally 
be  enlarged  to  a  fee  by  the  imposition  of  a  charge  upon  the 
person  of  the  devisee,  or  on  the  quantum  of  the  interest  de- 
vised to  him;1  but  not  if  the  lands  are  merely  devised  subject 
to  a  charge.2  Where  the  charge  is  on  the  estate,  and  there  are 
no  words  of  limitation,  the  devisee  takes  an  estate  for  life 
only,3  but  where  the  charge  is  on  the  person  of  the  devisee  in 
respect  of  the  estate  in  his  hands,  he  takes  a  fee  by  implica- 
tion.4 If  the  charge  be  on  the  person  of  the  devisee,  the 
amount  is  unimportant  if  the  sum  is  to  be  paid  absolutely.5 
But  this,  it  will  be  understood,  applies  only  to  indefinite  de- 
vises. Where  the  estate  is  given  for  life  in  express  terms,  and 
some  other  determinate  estate  is  expressly  given  or  arises  by 
necessary  implication  from  the  language  of  the  devise  over,  the 
rule  is  inoperative  to  enlarge  such  an  estate  to  a  fee.6 

§  394.  Devise  on  Condition  Precedent.  This  frequently 
occurs  where  land  is  given  on  condition  that  the  devisee  pay 
certain  legacies,  or  perform  certain  acts,  etc.,  and  performance 
of  the  condition  is  essential  to  the  vesting  of  the  estate.7  Where 
the  conditions  are  limited  as  to  time,  and  are  not  performed 
within  that  time,  the  devise  does  not  take  effect,8  but  becomes 
inoperative  and  void.  A  devise  upon  condition,  therefore,  fre- 
quently raises  an  inquiry  in  pais  upon  the  examination  of  a 

1  Tracy  v.  Kilborn,  3  Cush.  5  Colliers'  Case,  6  Rep.  10;  2 
(Mass.)  557;  Baker  v.  Bridge,  12  Jarm.  on  Wills,  171;  Jackson  v. 
Pick.  27;  Barheydt  V.  Barheydt,  20  Merrill.  6  Johns.  18G;  Barheydt  v. 
Wend.  576.  Barheydt,   20    Wend.    576;    Jackson 

2  Hawkins  on   Wills,   134.  V.   Harris,   12  Wend.  83. 

3  Fox  v.  Phelps,  17  Wend.  393.  6  Jarm.  on  Wills,  173;  Groves  V. 
By   force   of   the   statute   a   general  Cox,  40  N.  J.  L.  40. 

devise   will    pass    all   1he    testator's  7  Xevius   V.   Gourley,   05   111.   206. 

estate,    including   the   fee,   unless   a  A  court  of  chancery  will  never  vest 

contrary  intent  fairly  appears.  an  estate  when,  by  reason  of  a  con- 

4  Jackson  v.  Bull,  10  Johns.  148;  dition  precedent,  it  will  not  vest  in 
Funk    v.    Eggleston,     92     111.     515;  law:    Id. 

Merritt  v.  Brantly,  8  Fla.  226 ;  Cook  s  Nevius   r.   Gourley,   97    111.    356 

V.    Holmes,    11   Mass.   528;    Wait   17.  (2d  hearing);  Den  v.  Messenger,  33 

Eelding,  24  Pick.  129.  N.  J.  L.  490. 
31 


482 


ABSTRACTS    OF    TITLE. 


title  proffered  by  the  devisee,  and  before  passing  or  accepting 
same,  a  requisition  should  be  made  for  further  information 
relative  to  the  due  performance  of  the  condition. 

§895.  Conditional  Devise  — Marriage.  Estates  for  life 
are  frequently  devised  to  surviving  husbands  or  wives,  subject 
to  a  defeasance  in  the  event  of  a  second  marriage,  and  occa- 
sionally unmarried  people  are  made  the  objects  of  such  testa- 
mentary bounty  so  long  as  they  may  remain  single.  A  title 
involving  such  an  estate,  whether  offered  by  the  life  tenant 
or  remainderman,  demands  and  should  receive  the  closest  scru- 
tiny. 

The  rule  is  well  settled,  both  in  England  and  this  country, 
that  conditions  in  general  restraint  of  marriage,  whether  of 
man  or  woman,  are  void  in  law,  being  against  public  policy.9 
But  this  rule  does  not  extend  to  special  restraints,  such  as 
against  marriage  with  a  particular  person,  or  before  attaining  a 
reasonable  age,  or  without  consent.     Xor  is  it  ever  extended  to 


9  It  appears  from  the  early  Eng- 
lish cases  that  this  doctrine  was 
borrowed  by  the  English  ecclesi- 
astical courts  from  the  Roman  civil 
law,  which  declared  absolutely  void 
all  conditions  in  wills  restraining 
marriage,  whether  precedent  or  sub- 
sequent, whether  there  was  any  gift 
over  or  not.  But  the  courts  of  equi- 
ty found  themselves  greatly  embar- 
rassed between  their  anxiety  on  the 
one  hand  to  follow  the  ecclesiastical 
courts,  and  their  desire  on  the  other 
to  give  more  heed  to  the  plain  in- 
tention and  wish  of  the  testator  as 
manifested  by  the  whole  will. 
Thereupon  the  process  of  distin- 
guishing commenced  for  the  pur- 
pose of  preventing  obvious  hardships 
arising  from  the  application  of 
that  technical  rule  to  particular 
cases.  As  a  result  there  has  been 
ingrafted  upon  the  doctrine  a  multi- 
tude   of    curious    refinements    and 


subtle  distinctions  respecting  real 
and  personal  estate,  conditions  and 
limitations,  conditions  precedent 
and  conditions  subsequent,  gifts 
with  and  without  valid  limitations 
over,  and  the  application  of  the  rule 
to  widows  and  other  persons.  In- 
deed it  may  be  said  of  the  decisions 
upon  the  subject  that  "  the  more  we 
read,  unless  we  are  very  careful  to 
distinguish,  the  more  we  shall  be 
confounded."  The  whole  subject  as 
to  what  conditions  in  restraint  of 
marriage  shall  be  regarded  as  valid 
and  what  as  void  would  seem  to  be 
involved  in  great  uncertainty  and 
confusion  both  in  England  and  in 
this  country.  There  is  clearly  dis- 
cernible however,  through  all  the 
decisions  of  later  times,  an  anxiety 
on  the  part  of  the  judges  to  limit 
as  much  as  possible  the  rule  adopted 
from  the  civil  law. 


wills.  483 

the  case  of  a  second  marriage  of  a  woman ;  but  in  all  such 
cases  the  special  restraint  by  condition  is  allowed  to  take  ef- 
fect, and  the  devise  over  will  be  good  on  breach  of  condition. 
A  condition,  therefore,  that  a  widow  shall  not  marry,  is  by  all 
the  authorities  held  not  to  be  unlawful.10  In  the  decided 
cases  a  distinction  is  taken  between  those  where  the  restraint 
is  made  to  operate  as  a  condition  precedent,  and  those  where 
it  is  expressed  to  take  effect  as  a  condition  subsequent,  and  the 
decisions  have  generally  been  made  to  turn  upon  the  question, 
whether  there  be  a  gift  or  devise  over  or  not.  But  if  the  de- 
vise be  to  a  person  until  he  or  she  shall  marry,  and  upon  such 
marriage  then  over,  this  is  a  good  limitation  as  distinguished 
from  condition ;  as  in  such  case  there  is  nothing  to  carry  the 
interest  beyond  the  marriage.  There  can  be  no  doubt,  there- 
fore, that  marriage  may  be  made  the  ground  of  a  limitation 
of  estate,  either  ceasing  or  commencing,  and  this,  whether 
the  devisee  be  man  or  woman,  or  other  than  husband  and 
wife.11 

§  396.  Contingent  Remainders.  Under  devises  similar 
to  those  mentioned  in  the  preceding  paragraph,  many  questions 
will  arise  relative  to  the  devise  over,  which,  according  as  the 
phraseology  used,  will  be  either  a  vested  or  contingent  remain- 
der. These  questions  are  of  great  importance.  The  examiner 
should,  therefore,  exercise  the  greatest  care  in  transcribing  all 
devises  of  this  character,  and  for  greater  certainty  it  is  recom- 
mended that  they  be  presented  with  little  or  no  abbreviation. 
The  essence  of  the  contingent  remainder  is,  that  it  is  limited 
to  take  effect  on  an  event  or  condition  that  may  never  happen 
or  be  performed,  or  which  may  not  happen  or  be  performed 
until  after  the  determination  of  the  preceding  particular  es- 
tate.12 Thus  where  a  devise  over  operates  at  the  death  or 
marriage  of  the  first  devisee  to  such  of  testator's  children  as 
shall  then  be  living,  this  would  give  a  contingent  remainder 

10  Bostick  V.  Blades,  59  Md.  231;  11  Bostiek  V.  Blades,  59  Md.  231; 

Clark  v.  Tennison,  33  Md.  85;   Lit-  Arthur  r.  Cole.  56  Md.  100;  Brown 

tie  v.  Giles,  25  Neb.  313;  Knight  V.  v.  Brown,  41   X.  V.  507. 

Mahoney,  152  Mass.  523.  12  Bou.  Law  Diet.  435. 


484  ABSTRACTS    OF    TITLE. 

to  the  children  living  when  such  contingency  of  death  or  mar- 
riage happened.  The  children  of  the  testator  who  may  have 
died  after  the  testator  and  prior  to  the  happening  of  the  con- 
tingency would  take  no  estate,  nor  would  their  heirs,13  and  the 
fact  that  the  words  "  to  them,  their  heirs,"  etc.,  followed  the 
mention  of  the  children  would  not  affect  the  result,  for  such 
words  do  not  describe  the  devises  hut  only  the  quantity  of 
their  estate,  and  merely  show  the  estate  taken  by  the  previous 
words  to  be  fee.14 

§  397.  Contingent  Reversion.  A  contingent  reversion, 
so  called,  may  be  created  either  by  deed  or  will,  but  more  fre- 
quently occurs  under  the  latter.  It  is  not  strictly  a  reversion, 
however,  but  rather  a  possibility  of  reinvesture  in  the  grantor 
or  his  heirs,  and  occurs  where  a  conveyance  is  made  to  one  for 
life  or  years  with  a  contingent  remainder.  Thus,  in  case  of 
a  devise  to  an  unmarried  woman,  and  to  the  "  heirs  of  her 
body  "  or  "  children ;"  here  the  devisee  named  would  take  a 
life  estate  only,  while  a  contingent  remainder  is  created  in 
favor  of  her  specified  heirs,  who,  when  born,  would  take  the 
fee.  The  will  in  such  case,  effectually  divests  the  heirs  of 
the  testator  of  all  estate  but  a  contingent  reversion,15  depend- 
ent upon  the  devisee's  dying  without  issue.10 

§  398.  Devise  to  Married  Woman.  In  a  former  chap- 
ter17 the  subject  of  conveyances  to  married  women  was  quite 

13  01ney  v.  Hall.  21  Pick.  311;  Blair  v.  Vanblarcum,  71  111.  290. 
Emmison  v.  Whitelsey,  55  Mo.  254.  This    reversionary   interest  may   it- 

14  Thompson  V.  Ludington,  104  self  be  the  subject  of  devise :  Aus- 
Mass.    193.  tin  v.  Cambridgeport,  21  Pick.  215; 

15  Strictly  speaking  there  is  no  and  will  pass  under  a  residuary 
such  a  thing  as  a  contingent  rever-  clause:  Steel  v.  Cook,  1  Met.  281; 
sion.  What  is  really  meant  by  that  and  the  right  to  same  may  be  as- 
phrase  is  a  possibility  of  reverter,  serted  by  the  heirs  of  such  residuary 
but  in  practice  the  term  has  ac-  devisee  after  his  death:  Clapp  v. 
quired  a  currency  in  the  manner  Stoughton,  10  Pick.  462.  This  doc- 
indicated  in  the  text  and  is  con-  trine,  however,  does  not  coincide 
stantly  so  used  both  by  courts  and  with  the  common  law  rules  relative 
writers.  to  naked  possibilities. 

16  Frazer    v.    Supervisors    Peoria  17  See  Chap.  XVI. 
Co.,  74  111.   282;    2   Bl.  Com.    164; 


WILLS.  4S5 

fully  discussed  and  the  general  principles  there  laid  down  will 
apply  with  equal  force  to  a  devise  by  will.  The  general  rule  of 
construction,  in  the  absence  of  statutory  provisions  to  the  con- 
trary, is,  that  in  order  to  exclude  the  marital  rights  of  the 
husband  from  attaching  to  property  coming  to  the  wife  dur- 
ing coverture,  or  belonging  to  her  at  the  time  of  marriage,  an 
intention  on  the  part  of  the  testator  to  vest  in  the  wife  a  sep- 
arate estate  ought  to  appear  from  the  terms  or  provisions  of 
the  will  so  clearly  as  to  be  beyond  the  reach  of  reasonable  con- 
troversy.18 This  is  accomplished,  in  most  cases,  by  the  inser- 
tion of  technical  words,  as  "  sole  and  separate  use,"  or  other 
words  of  similar  import,  while  the  same  end  may  be  attained 
by  provisions  excluding  the  marital  rights  of  the  husband,  or 
by  giving  to  the  wife  powers  concerning  the  estate  inconsistent 
with  the  disabilities  of  coverture.19  The  statute,  however,  is 
a  potent  factor  in  solving  questions  of  this  character.  In  a 
majority  of  the  States  the  common  law  disabilities  of  cover- 
ture have  ceased  to  exist,  and  in  those  States  the  foregoing  re- 
marks have  no  application. 

§  399.  Devises  to  Executors  in  Trust.  It  is  a  rule  in 
equity,  that  the  language  employed  in  devises  in  trust  must  be 
such  as  to  show  that  the  object  is  certain  and  well  defined,  and 
that  the  beneficiaries  be  either  named,  or  capable  of  easy  ascer- 
tainment within  the  rules  of  law  which  are  applicable  to  such 
cases ;  and  further,  that  the  trusts  shall  be  of  such  a  nature  that 
a  court  can  direct  their  execution;  failing  in  this  the  property 
will  fall  into  the  residue  of  the  estate.20 

Devises  in  trust  are  frequently  made  to  executors  to  promote 
some  educational,  charitable  or  religious  purpose,  the  bene- 
ficiary being  an  institution  devoted  to  the  furtherance  of  those 

18  Schouler  Dom  Rel.  (2d  Ed.)  tained  by  testamentary  provisions. 
189 ;  2  Perry  on  Trusts,  §  647 ;  Hill  20  Holmes  r.  Mead,  52  N.  Y.  332 ; 
on  Trustees,  Gil.  Powell  on  Devises,  418;   Darling  v. 

19  Vail  v.  Vail,  49  Conn.  52.  The  P.ogers,  22  Wend.  494;  2  Story  Eq. 
statutes  now  in  force  in  most  of  the  Jur.  §  979;  Wheeler  V.  Smith,  9 
Stntes  will  alford  all  the  protec-tion  How.    (U.  S.)   55. 

that  was  formerly  sought  to  be  at- 


486  ABSTEACTS    OF    TITLE. 

objects,  though  it  is  not  uncommon  to  make  beneficial  devises 
to  individuals  in  the  same  manner.  It  is  usual,  though  not 
necessary,  to  specifically  name  or  describe  the  intended  bene- 
ficiaries, and  numerous  authorities  sustain  devises  to  executors 
or  trustees  which  confer  upon  them  authority  to  divide  the 
trust  estate  among  such  persons  as  they  may  select  from  cer- 
tain classes  which  are  designated,  and  among  such  children  or 
relatives,  who  are  intended  to  be  provided  for,  as  they  may 
deem  proper.21 

Where  the  devise  is  too  indefinite  to  give  certainty,  or  the 
trust  is  such  that  a  court  can  not  execute,  resort  is  usually  had 
to  a  court  of  chancery  for  a  construction  of  the  will,  and  where, 
as  a  result,  the  devised  property  falls  back  into  the  residuum, 
such  proceedings  become  a  necessary  link  in  the  chain  of  the 
title  to  such  particular  property.  A  devise  in  trust  for  such 
object  of  benevolence  and  liberality  as  the  trustee,  in  his  dis- 
cretion, shall  approve,  would  have  the  effect  last  mentioned.22 
So,  also,  would  a  power  of  appointment  to  one  to  give  or  devise 
property  "  among  such  benevolent,  religious,  or  charitable  in- 
stitutions as  he  may  think  proper,"  23  be  vague  and  indefinite. 
A  power  of  disposition,  to  such  members  of  a  specified  branch 
of  a  family  as  the  trustee  might  consider  most  deserving,  has 
been  held  void,  for  the  same  reason.24  A  direction  to  give  a 
fund  in  "  private  charity  "  is  too  indefinite,25  or  to  give  what 
they  might  choose,2'3  but  when  the  beneficiaries  are  capable  of 
identification,  although,  not  named,  the  trust  will  yet  be  valid, 
and  a  testator  may  commit  to  competent  persons  the  power 
to   designate   who   of   certain   persons    shall    participate    in    a 

21  Power    v.    Cassidy,    79    N.    Y.  23  Norris  v.  Thompson's  Exrs.,  19 

602;  Bull  V.  Bull,  8  Conn.  48;  Nor-  N".  J.  Eq.  307. 

ris   v.   Thompson's   Exrs.,   19   N.   J.  24  Stubbs  v.  Sargon,  3  Myl.  &  Cr. 

Eq.   307;    McLoughlin  v.  McLough-  (Eng.  Ch.)  507. 

lin,  30  Barb.  458.  25  Ommanny   v.    Butcher,    1   T.   & 

2  2Moriee   v.    Bishop   of  Durham,  R.  (Eng.  Ch.)  260. 

10  Ves.   (Eng.)   522.  26  Wetmore   v.   Parker,   52   N.   Y. 

450. 


wills.  487 

specified  portion  of  his  estate,   and  in  what  proportions  the 
property  shall  be  divided.27 

§  400.  Gift  to  Devisee  by  Description.  The  observa- 
tions of  the  last  section  are  in  a  measure  applicable  to  direct 
gifts,  for  a  devisee,  whether  a  corporation  or  a  natural  person, 
may  be  designated  by  description,  as  well  as  by  name.28  It  is 
only  necessary  that  the  description  of  the  devisee  be  by  words 
that  are  sufficient  to  denote  the  person  meant  by  the  testator, 
and  to_  distinguish  him  from  all  other  persons.29  In  such 
cases,  however,  a  judicial  construction  will  be  necessary  in 
order  to  fully  perfect  the  title  of  the  imperfectly  designated 
devisee,  and  the  decree  rendered  upon  such  construction,  to- 
gether with  the  will,  forms  the  basis  of  the  devisee's  claim  of 
title.  Devises  to  corporations  are  particularly  subject  to  the 
rule  above  stated,  as  the  testator,  through  inadvertence,  ignor- 
ance, or  mistake,  frequently  fails  to  insert  the  strictly  legal  name 
of  the  corporation.  Parol  evidence  is  always  admissible  to  re- 
move latent  ambiguities,  and  where  there  is  no  person  or  cor- 
poration in  existence  precisely  answering  to  the  name  or  de- 
scription in  the  will,  parol  evidence  may  be  given'  to  ascer- 
tain who  was  intended  by  the  testator.  "  A  corporation,"  says 
Allen,  J.,  "  may  be  designated  by  its  corporate  name,  by  the 
name  by  which  it  is  usually  or  popularly  called  and  known, 
by  a  name  by  which  it  was  known  and  called  by  the  testator, 
or  by  any  name  or  description  by  which  it  can  be  distinguished 
from  every  other  corporation;  and  when  any  but  the  corporate 
name  is  used,  the  circumstances  to  enable  the  court  to  apply 
the  name  or  description  to  a  particular  corporation  and  iden- 
tify it  as  the  body  intended,   and  to  distinguish  it  from  all 

27  Williams  v.  Williams,  4  Seld.  29  Button  r.  Am.  Tract  Soc'y,  23 
(N.  Y.)  548;  Owens  v.  Miss.  Soc.,  Vt.  330;  McAllister  v.  McAllister, 
14  N.  Y.  386;  2  Redf.  on  Wills,  46  Vt.  272;  Minot  V.  Curtis,  7  Mass. 
779;  White  r.  Fisk,  22  Conn.  31;  441;  Holmes  V.  Mead,  52  N.  Y. 
Lefevre  V.  Lefevre,  59  N.  Y.  434.  332;  Gardner  v.  Heyer,  2  Paige,  11. 

28  Lefevre    v.    Lefevre,    59    N.    Y. 
434. 


488  ABSTRACTS    OF   TITLE. 

others  and  bring  it  within  the  terms  of  the  will,  may,  in  all 
cases,  be  proved  by  parol."  30 

§  401.  Precatory  Trusts.  Precatory  trusts  grow  out  of 
words  of  entreaty,  wish,  expectation,  request,  or  recommenda- 
tion frequently  employed  in  wills,  and  the  authorities,  both 
English  and  American,  are,  in  the  main,  harmonious  in  de- 
claring that  a  trust  will  be  created  by  such  words  as  "  hope," 
"  wish,"  "  request,"  etc.,  if  they  be  not  so  modified  by  the  con- 
text as  to  amount  to  no  more  than  mere  suggestions  to  be  acted 
on  or  not  according  to  the  caprice  of  the  immediate .  devisee, 
or  negatived  by  other  expressions  indicating  a  contrary  inten- 
tion. But,  to  effect  this  result,  both  the  subject  and  object 
must  be  certain.31  An  absolute  gift  to  one  person,  accompa- 
nied with  a  request  to  appropriate  a  particular  sum  to  another 
person,  creates  in  the  immediate  devisee  a  trusteeship,  to  the 
extent  of  such  sum,  nor  does  the  absolute  gift,  contravene  either 
an  express  or  implied  trust  annexed  to  the  gift,  as  it  is  a  com- 
mon thing  to  invest  the  legal  title  and  trusteeship  in  the  same 
person  who  is  to  receive  the  benefit  in  the  event  of  a  failure  of 
the  trust.  It  is  equally  well  settled,  however,  that  a  mere  di- 
rection by  a  testator,  that  a  devisee  shall  pay  a  legacy,  does 
not  thereby  create  a  charge  on  the  land ;  to  accomplish  this 
there  must  be  express  words,  or  necessary  implication  from 
the  whole  will,  that  such  was  the  intention.32 

There  has  been  a  tendency  manifested  by  some  courts  to 
restrict  the  application  of  this  rule,  or  to  qualify  it,  and,  in 
some  instances,  to  reject  it  altogether,  and  to  adopt,  as  more 
reasonable,  the  presumption  that  words  precatory  in  form  are 
meant  to  imply  a  discretion  in  the  donee,  and  should  be  so 
construed  unless  clearly  shown  to  be  used   in   an  imperative 

30  Lefevre  V.  Lefevre,  59  X.  Y.  32  Cable's  Appeal,  9  Reporter,  57 
424  ;  St.  Luke's  Home  v.  Asso'n  for  Lupton  r.  Lupton,  2  Johns  Ch.  614 
Indigent  Females,  52  N.  Y.   191.  Chapin    v.    Gilbert,    19    Conn.    342 

31  Bohoh  V.  Barret's  Ex'r,  79  Ky.  Pennock's  Estate,  20  Penn.  St.  268 
378";  Hill  on  Trustees,  92 ;  Perry  on  Walter's  Appeal,  95  Penn.  St.  305 
Trust*,    4;    Gilbert    V.    Chapin,    19  Taylor  v.  Dodd,  58  N.  Y.  335;  Read 
Conn.   342.  v.  Cather,  18  W.  Va.  263. 


wills.  489 

sense  from  other  parts  of  the  will ;  33  but  the  weight  of  author- 
ity sustains  the  principles  first  stated,  and  precatory  words 
are  generally  held  to  be  creative  of  trusts,  when  the  contrary 
does  not  appear  from  the  context  or  by  necessary  implication.34 

§  402.  Perpetuities.  Attempts  are  frequently  made  in 
wills,  though  seldom  in  deeds,  to  create  what  the  law  regards 
as  perpetuities,  and  this  occurs  whenever  there  is  a  suspen- 
sion of  the  power  of  alienation  for  a  longer  period  than  a 
life  or  lives  in  being  at  the  creation  of  the  estate,35  or  of  such 
lives  in  being  and  twenty-one  years  and  nine  months  at  the 
farthest,36  the  rule  varying  somewhat  in  different  States.  In 
construing  dispositions  of  property  with  reference  to  the  stat- 
ute against  perpetuities,  the  rule  is  settled  that  any  limitation 
is  void  as  in  violation  of  the  statute,  by  which  the  suspension 
of  the  power  of  alienation  wTill  not  necessarily,  under  all  possi- 
ble circumstances,  terminate  within  the  prescribed  period. 
It  is  not  enough  that  it  may  terminate ;  it  must,  and  if  by  any 
possibility,  the  vesting  of  the  estate  may  be  postponed  beyond 
the  statutory  period,  the  limitation  will  be  void.37  In  all 
cases,  where  the  limitation  is  void  as  being  too  remote,  the 
will  should  be  construed  as  if  no  such  clause  were  in  it,  and 
the  first  taker  will  hold  his  estate  discharged  from  the  limita- 
tion over.38 

§  403.  Lapsed  Devise.  When  a  devisee  named  in  a  will 
dies  during  the  lifetime  of  the  testator,  the  devise  is  said  to 
lapse ;  that  is,  it  does  not  go  to  the  heirs  of  such  deceased 
devisee,  but  falls  back  into  the  estate  of  the  testator.  The 
rule,  though  frequently  acknowledged  to  be  productive  of  great 
hardship,  and  to  be  often  contrary  to  the  intention  of  the  testa- 
tor, is  too  firmly  established  to  be  questioned.     It  is  regarded 

33  Pennock's  Case,  20  Pa.  St.  272.  37  Schettler   v.    Smith.    41    N.    Y. 

•'!4Peed's  Adm'r  v.  Eeed,  30  Ind.  328;  Stephens  v.  Evans,  30  [nd.  39; 

313;  Warner  v.  Bates,  98  Mass.  274.  Lorrillard  V.   Coster,  5   Paige,    17:2: 

35  Schettler   v.    Smith,    41    N.    Y.  Hawley  <?.  Northampton,  8  Mass.  3. 

328;   Knox  v.  Jones,  47  N.  Y.  389.  38  Wood  v.  Griffin,  46  N.  H.  234; 

30  Stephens  V.  Evans,  30  Ind.  39;  Anderson  V.  Grable,  1  Ark.  136. 
see  1  Jar.  on  Wills,  226. 


490  ABSTRACTS    OF    TITLE. 

as  a  rule  of  necessity,  and  merely  amounts  to  this:  That  if 
there  be  no  devisee,  there  is  in  effect  no  devise.39  The  statute, 
in  some  States,  has  slightly  modified  this  rule,  particularly 
where  the  devise  is  to  children,  but  in  the  absence  of  such  stat- 
utes the  rule  seems  to  be  inflexible. 

§  404.  Devises  for  the  Payment  of  Debts.  Land  de- 
vised to  trustees  for  the  payment  of  debts  and  legacies  is 
usually  regarded  in  equity  as  money,40  but  the  heir  at  law 
has  a  resulting  trust  in  such  land,  after  the  debts  and  legacies 
are  paid,  and  may  restrain  the  trustee  from  selling  more  than 
is  necessary  to  pay  such  debts  and  legacies ;  or,  he  may  pay 
them  himself,  and  have  conveyance  of  that  portion  of  the  land 
not  sold  in  the  first  case,  and  the  whole  in  the  latter,  which 
property  will,  in  either  case,  be  land  and  not  money.41  Equity 
will  extend  the  same  privilege  to  the  residuary  legatee.42 

A  mere  charge  upon  land  stands  upon  a  different  footing, 
and  the  executor  possesses  no  power  to  sell  or  dispose  of 
the  land  in  such  case  except  by  license  or  direction  of  the 
probate  court.43  The  land  in  the  hands  of  the  devisee  is  bur- 
dened by  the  charge,44  and  should  he  renounce  the  devise  such 
land  will  descend  to  the  heir  at  law  subject  to  the  charge;  45 
but  the  executor  having  no  status  as  a  trustee,  takes  no  inter- 
est in  same,  and  no  power  can  be  implied  from  the  mere  charge 
of  the  debts  and  legacies  upon  the  lands  devised.46 

§  405.  Charges  on  Lands  Devised.  Eeal  estate  is  not, 
as  of  course,  charged  with  the  payment  of  legacies.  It  is  never 
so  charged  unless  the  testator  intended  it  should  be,  and  that 
intention  must  be  either  expressly  declared,  or  fairly  and  sat- 
isfactorily inferred  from  the  language  and  dispositions  of  the 
will.47     Mere  directions  to  pay  debts  and  legacies  are  not  suf- 

39  Davis'  Heirs  V.   Taul,   6  Dana,  43  Dill  v.  Wisner,  88  N.  Y.  153. 
52.                                                                         44  Gridley   v.    Gridley,    24    N.    Y. 

40  Craig  v.  Leslie,  3  Wheat.  463;  130;   Harris  v.  Fly,  7  Paige,  421. 
Story  Eq.  §  552;  Dill  v.  Wisner.  88  45  Birdsall    v.    Hewlett,    1    Paige, 
N.  Y.  153.  32. 

41  Craig  v.  Leslie,  3  W7heat,  463.  40  In  re  Fox,  52  N.  Y.  530. 

42  Craig  v.  Leslie,  3  Wheat.  463.  47  Okeson's  Appeal,  59  Pa.  St.  99; 


WILLS.  491 

ficient  to  create  a  charge,48  but  where  the  testator  clevises  his 
real  estate,  after  the  payment  of  debts  and  legacies,  or  with 
a  direction  that  debts  and  legacies  shall  be  first  paid,  then  the 
real  estate  is  charged  with  the  payment  of  them  and  they  be- 
come liens  upon  the  land.49  If  the  devisee  accepts  the  de- 
vise, he  becomes  personally  liable  for  the  legacies,50  which  still 
remain,  however,  a  charge  upon  the  land.51  When  the  same 
sentence  or  clause  by  which  land  is  devised  imposes  on  the 
devisee  the  duty  of  paying  an  annuity,  and  no  other  fund  is 
provided  out  of  which  the  payment  is  to  be  made,  the  annuity 
is  a  charge  upon  the  land ;  52  and  in  like  manner,  where  a  testa- 
tor, without  creating  an  express  trust  to  pay  legacies,  makes 
a  general  residuary  disposition  of  his  whole  estate,  blending 
the  realty  and  personalty  together  in  one  fund,  the  real  estate 
is  constructively  charged  with  the  legacies.53 

In  every  instance,  therefore,  where  legacies  are  directly  or 
constructively  charges  or  liens  upon  the  realty,  satisfactory  as- 
surance must  be  given  that  the  legacies  have  been  paid  or  the 
lien  released  before  the  title  is  accepted  by  a  purchaser  from 
the  devisee.  Frequently  these  facts  will  appear  from  the  ex- 
ecutor's final  report,  and  in  the  abstract,  of  this  document,  in 
connection  with  the  probate  proceedings,  statements  of  this 
kind  should  always  be  shown. 

Kirkpatrick    v.    Chestnut,    5    S.    C.  devise,  whereby  a  charge  is  created 

216;    Lupton    v.    Lupton,    2    Johns.  upon   the  land  for  the   payment   of 

Ch.  614;  Cable's  Appeal,  91  Pa.  St.  legacies,    such    purchasers    will    be 

327.     Legacies    are    primarily    pay-  constructively   afi'ected    with    notice 

able  out  of  the  personal  estate.  of  such  charge,  and  equity  will  en- 

48  Taylor  r.  Dodd,  5S  X.  Y.  335 ;  force  it  upon  the  land  in  their 
Walter's  Appeal,  05   Pa.   St.   305.  hands:"    2    Redf.    on    Wills,    *  210; 

49  Lupton  17.  Lupton,  2  Johns.  citing  Harris  v.  Fly,  7  Paige,  421 
Ch.  614;  Wood  V.  Sampson,  25  Wallington  v.  Taylor,  Saxton,  314 
Gratt.   (Va.)   845.  and  see  Aston  v.  Galloway,  3   Ired. 

SOBirdsall    l>.    Hewlett.    1    Paige,  Eq.   (N.  C.)    126. 

33;  Burch  V.  Burch,  52  Ind.   136.  52  Merrill  v.  Biokford,  65  Ale.  118. 

51  "It  seems  to  be  well   settled,"  53  Lewis  V.  Darling,   16  How.   1; 

says     Mr.     Bedfield,     "that     where  Nichols    r.    Postlctliwaite,    2    Dall. 

lands  are  held  by   subsequent  bona  131;   Hill   on  Trustees,  860;   Galla- 

fide  purchasers   for  value,  but  who  gher's  Appeal,  48  Pa.  St.  121. 
are  obliged  to  trace  title  through  a 


492  ABSTRACTS   OF   TITLE. 

In  this  connection  an  important  distinction  should  be  noted, 
with  regard  to  the  estate  possessed  by  the  devise,  between  such 
legacies  as  constitute  a  personal  charge  upon  the  devisee,  and 
such  as  are  expressly  charged  upon  the  estate.  Where  an  es- 
tate is  devised  subject  to  the  payment  of  legacies,  if  the  lega- 
cies are  made  a  personal  charge  upon  the  devisee,  an  accept- 
ance of  the  devise  operates  to  make  such  legacies  a  personal 
liability  of  the  devisee,  while  he  will  take  the  estate  devised  as 
a  purchaser  in  fee ;  but  if  the  legacies  are  charged  upon  the 
estate  devised,  the  devisee  does  not  take  as  a  purchaser  for 
value,  but  as  a  beneficial  devisee.54 

§  406.  EquitaMe  Conversion.  It  is  a  fundamental  prin- 
ciple in  equity,  long  established  and  universally  recognized, 
that  where  a  testator  directs  that  his  real  property  be  con- 
verted into  money  on  or  before  a  given  time,  it  becomes,  for 
practical  purposes,  money,  and  will  be  treated  as  personalty 
from  the  moment  of  his  death.  In  such  case,  therefore,  the 
heir  takes  no  interest  in  the  land,  which  is  held  by  the  exec- 
utor as  other  personal  property,  and  can  make  no  conveyance 
of  same  that  will  defeat  or  impair  the  rights  of  a  purchaser 
from  the  executor.  Yet  to  effect  this  change  the  intention 
of  the  testator  must  appear  by  unequivocal  declaration.50 
There  must  be  an  imperative  and  unmistakable  direction  to 
sell,  and  if  the  power  to  sell,  or  the  sale  itself  is  coupled  with 
terms  or  dependent  upon  a  contingency,  there  is  no  conver- 
sion until  the  terms  have  been  complied  with  or  the  contin- 
gency has  happened,56  and,  as  courts  are  always  averse  to 
sanctioning  a  change  in  the  quality  of  an  estate,  if  there  be 
any  doubt  as  to  the  intention  of  the  testator  the  original  char- 
acter of  the  property  will  be  retained.57  The  policy  of  the 
law  favors  the  vesting  of  estates  and  the  provisions  of  a  will 
should  always  be  construed  as  creating  a  vested  estate  if  possi- 
ble.58 

54  Funk  v.  Eggleston,  92  111.  515.  57  Orrick  V.  Boehm,  49  Md.  104; 

r.5Ducker  V.  Burnham,  146  111.  9.  Peter  v.   Veberly,    10   Pet.    (U.    S.) 

56  See,   Estate  of  Machemer,   140  533. 

Pa.  St.  544.  58  Scofleld  v.  Olcott,  120  111.  362. 


WILLS. 


493 


§  407.  The  Residuary  Clause.  In  a  majority  of  wills 
there  is  inserted  at  the  close  a  general  devise  of  everything 
that  the  testator  has  not  succeeded  in  disposing  of  in  former 
parts  of  the  will,  which  is  called  the  residuary  clause.  This 
portion  of  the  instrument  should,  as  a  rule,  be  copied  entire, 
as  it  is  often  of  vital  importance  in  determining  questions  of 
title  under  lapsed  devises  and  of  fixing  the  ownership  of  lands 
not  specifically  granted  or  alluded  to  elsewhere  in  the  instru- 
ment. Where  the  language  of  a  residuary  clause  has  suffi- 
cient scope  and  extent,  evincing  the  intent  of  the  testator  to 
take  up  and  carry  into  the  residuary  estate  all  of  his  estate 
remaining  at  his  death  undisposed  of  for  any  reason,  the  re- 
siduary clause  will  receive  and  pass  a  lapsed  legacy  and 
devise,59  as  well  as  such  as  may  fail  for  want  of  use  of  proper 
language  to  create  the  same,  or  to  designate  the  devisee.60  But 
when  the  residuary  clause  does  not  by  its  own  terms  take  in  a 
lapsed  legacy  or  devise,  so  as  to  disclose  the  intent  of  the  testa- 
tor to  pass  the  lapsed  estate  into  the  residue,  the  rule  is 
different.01  Void  and  illegal  legacies  or  devises  come  under 
the  rule  first  above  stated,02  and  generally,  unless  a  contrary 
intention  is  manifested,  the  residuum  will  take  and  pass  every- 
thing of  the  nature  above  indicated.63 

A  different  rule,  however,  applies  to  the  residue  itself,  for 
if  a  gift  of  the  residue,  or  any  part  of  it  fails,  whether  by 
lapse,  illegality,  or  revocation,  to  the  extent  that  it  fails,  the 
will  is  inoperative,  and  the  subject  of  the  gift  passes  to  the 
heirs  or  next  of  kin  according  to  the  statute  of  descents.64 

59  Youngs  v.  Youngs,  45  N.  Y.  The  legacy  falling  into  the  resid- 
254;  Patterson  v.  Swallow,  8  Wr.  uum;  the  lapsed  devise  descending 
(Pa.)  490;  Ilillis  v.  Hillis,  16  Hun  to  the  heirs:  See  Orrick  v.  Boehm, 
(N.    Y.)     70.     Local    statutes    will  49  Md.   2. 

sometimes  materially  affect  the  doc-  63  Thayer  v.  Wellington,   9  Allen 

trine  stated  in  the  text.  (Mass.),  283.     The  residuary  clause 

60  Lovering   v.    Allen.    129    Mass.  will   carry  the   estate   devised    in    a 
97.  clause    which    the    testator    has    re- 
el Yard  r.  Murry,  86  Pa.  St.  113.  voked  by  striking  it  out  of  his  will. 
«2  Burnet  t;.  Burnet,  30  N.  J.  Eq.  Biglow  V.  Gilbert,  123  Mass.    102. 

•"'!•">.     A  distinction  is  made  in  some  «  4  Burnet  V.  Burnet,  30  N.  J.  Eq. 

Stales  between  legacies  and  devises.       595. 


494  ABSTKACTS    OF    TITLE. 

§  408.  Codicils.  A  codicil  is  defined  as  some  addition  to, 
or  qualification  of,  a  last  will  and  testament.05  Where  it  is 
in  irreconcilable  conflict  with  the  will,  it  must  prevail  as  a 
revocation,  since  it  is  the  last  expression  of  the  testator's  in- 
tent in  the  disposition  of  his  property.00  Usually,  however, 
a  codicil  imports  not  a  revocation,  but  an  addition  to,  or  ex- 
planation, or  alteration  of  the  will,  in  reference  to  some  par- 
ticular, and  assumes  that  in  all  other  particulars  it  is  to  be  in 
full  force  and  effect.07  The  authorities  fully  establish  the 
proposition  that  a  codicil  which  does  not  in  terms  revoke  a 
clause  in  the  will,  but  modifies  it  in  some  of  its  features  en- 
tirely consistent  with  the  retention  of  its  other  provisions,  will 
be  allowed  to  have  that  partial  effect,  and  the  clause  thus 
changed  will  remain  as  the  embodiment  and  expression  of  the 
testator's  intent,  while  if  duly  executed  with  all  the  formal- 
ities required  by  law,  it  will  operate  to  confirm  and  republish 
the  rest  of  the  will,68  unless  the  testator  declares  that  he  does 
not  intend  that  it  shall  have  that  effect.69 

It  will  thus  be  seen  that  the  codicil  plays  a  most  important 
part  both  in  the  disposition  of  the  property  and  in  the  matter 
of  validating  that  which  has  preceded  it,  and  which,  by  reason 
of  defective  execution  or  other  circumstance,  has  become  in- 
operative.70 It  is  an  established  rule  not  to  disturb  the  dis- 
positions of  the  will  further  than  is  absolutely  necessary  to 
give  effect  to  the  codicil,71  and  the  intent  of  the  testator  is 
always  sought  to  give  effect  to  both  instruments  when  they 
can  operate  in  perfect  harmony.72  But  where  the  absolute  and 
unqualified  gift  in  -the  codicil  is  incompatible  with  the  dis- 
position of  the  land  made  in  the  will,  and  must  have  a  re- 

G5Bou.  Law  Diet.  285.  White,   6  Johns.   Ch.   375;    1   Jarm. 

66  Hallyburton    v.    Carson,   86   N.  on  Wills,   78. 

C.  290.  69  Van  Cortlandt   r.   Kip,   1  Hill, 

6  7  Wetmore   V.   Parker,   52  N.   Y.  590. 

450.  70  See  Wms.  on  Executors,  97 ;   1 

68  0'Hara  on  Wills,  6;   Brown  v.  Jarm.  on   Wills.   78. 

Clark,  77  N.  Y.  369;  Van  Cortlandt  71  Jarm.  on  Wills,  343,  note. 

v.    Kip,     1    Hill,    590;    Mooers    r.  72  Hallyburton   v.   Carson,  86  N. 

C.  290. 


wills.  495 

yoking  efficacy  or  be  itself  nugatory,  the  will  must  yield  to  the 
codicil.73  A  codicil  depending  upon  the  body  of  the  will  for 
interpretation  or  execution  can  not  be  established  as  an  inde- 
pendent will,  when  the  will  itself  has  been  revoked.74 

§  409.  Revocation.  The  question  of  revocation  will 
arise  during  the  examination  of  a  title,  if  at  all,  only  by  impli- 
cation. A  proper  probate  disposes  of  all  questions  of  this 
kind .  and  establishes  the  will.  But  facts  and  circumstances 
may  be  disclosed  which  create  legal  inferences  and  when  such 
is  the  case  the  duty  of  the  examiner  is  to  fully  investigate  and 
solve  any  question  that  may  be  so  presented.  A  change  of 
condition  or  domestic  relation  after  the  making  of  a  will  and 
which  involves  new  or  different  moral  duties,  will  generally 
raise  a  presumption  of  change  of  intention  on  the  part  of  the 
testator.75  Hence,  the  marriage  of  a  feme  sole;  birth  of  issue; 
and  divorce,  under  certain  conditions,  may  all  tend  to  create 
this  presumption. 

§  410.  Formal  Requisites.  There  are  a  number  of  in- 
dispensable requisites  to  a  valid  will,  which,  though  of  the 
highest  importance  generally,  do  not  require  more  than  pass- 
ing mention  in  this  work.  These  requisites  do  not  relate  to 
form,  but  go  to  the  very  substance  of  the  instrument.  They 
relate  mainly  to  the  testamentary  capacity  of  the  testator  as 
dependent  on  soundness  of  mind,  etc.,  and  to  his  surroundings 
and  the  effect  of  fraud,  duress,  undue  influence,  and  the  like. 
All  of  these  questions,  however  important  they  may  be,  do  not 
arise  in  the  exa:nination  of  a  title  derived  through  or  under 
a  will,  for  they  are  all  supposed  to  have  been  duly  investi- 
gated during  the  probate  and  satisfactorily  answered  before 
the  will  was  permitted  to  become  operative  as  a  conveyance. 

With  respect  to  the  strictly  formal  parts  a  very  simple  and 
imtechnical  document  will  be  sustained  as  a  will,  where  the 
writing  relied  on  has  been  executed  in  conformity  to  the  stat- 

'■•  Wain wright  v.  Tuckerman,  120  74  Youse     v.     Forman,     5     Bush 

Mass.   232;    Vaughan   v.   Bunch,   53        (Ky.)    337. 

Miss.  513.  75  4  Kent's   Com.   521;   2  Greenl. 

Evid.  §  684. 


496  ABSTRACTS    OF    TITLE. 

ute,  and  shows  upon  its  face  a  declaration  by  the  testator  that 
it  is  his  will.76  The  essence  of  a  will  is,  that  it  is  a  disposition 
to  take  effect  at  death,77  and  the  form  of  the  instrument,  there- 
fore, is  immaterial  if  its  substance  is  testamentary.78  The 
statute  usually  requires  the  paper  to  be  signed  by  the  testator, 
but  the  signature  may  be  original  or  by  adoption,79  and,  as  a 
rule,  it  must  be  attested  by  two  or  more  subscribing  witnesses, 
who,  at  the  testator's  request,  affix  their  signatures  in  his 
presence.80  As  the  execution  and  publication  are  also  matters 
of  strict  proof  in  the  probate  court  they  may  be  presumed  to 
have  been  in  conformity  to  law  after  the  will  has  been  duly 
presented  and  admitted  in  such  court.  Should,  however,  the 
examiner  observe  palpable  defects  of  form  they  should  be 
presented  in  the  abstract  that  proper  inquiries  may  be  founded 
on  them. 

§  411.  Abstract  of  Wills.  An  eminent  English  convey- 
ancer 81  once  said,  that  he  could  scarcely  admit  of  a  will  be- 
ing abstracted  at  all,  and  strongly  recommended  that  it  be 
copied  instead,  in  order  that  counsel  might  have  an  oppor- 
tunity of  judging  by  the  context  as  well  as  by  the  particular 
words  of  the  devise  or  bequest.S2  The  reason  assigned  by  the 
English  conveyancer  is  a  good  one,83  yet  in  preparing  the  ab- 
stract of  a  will  it  is  not  usually  necessary  that  the  entire  in- 

76  3  Wash.  Ileal  Prop.  *681;  70  A  mark  has  been  held  a  good 
Turner  v.  Seott,  51  Pa.  St.  126;  signature  even  when  the  statute 
Burlington  University  V.  Barrett,  uses  the  word  subscribed:  Van 
22  Iowa,  60;  Wall  v.  Wall.  30  Miss.  Honswyck  V.  Wiese,  44  Barb.  494; 
91.  Although  an  instrument  be  in  Jackson  v.  Jackson,  39  N.  Y.  153. 
the  form  of  a  deed,  and  called  such,  80  Consult  Hopper's  Will,  1  Tuck, 
still  if  its  purpose  be  testamentary,  (N.  Y.  Sur. )  378;  Lawrence's  Will, 
and  it  is  only  to  be  consummated  Id.  243;  Holloway  V.  Galloway,  51 
by   the   death    of   the   maker,   effect  111.  159. 

will  be  given  to  it  as  a  will  and  not  81  Mr.   Barton. 

as   a   deed:    Gillham   v.   Mustin,   42  82  Moore  on  Abst.   39. 

Ala.  365.  83  This   observation   derives   addi- 

77  Not  after  death,   as  the  books  tional  force  from  the  fact  that,  for- 
frequently  state.  merly    real    estate    wills    were    not 

78  Wilson's  Ex'rs  V.  Van  Leer,  103  proved  in  England. 
Pa.  St.   600. 


WILLS.  497 

strument  should  appear,  but  only  such  parts  as  have  special 
or  general  reference  to  the  property  in  question.  Modern  wills 
in  many  instances,  and  ancient  wills  uniformly,  contain  a 
preamble  dedicating  the  testators'  souls  to  God,  expressing 
the  soundness  of  their  minds,  the  health  or  debility  of  their 
bodies,  and  other  particulars  of  no  special  importance  and 
which  have  no  necessary  connection  with  or  relation  to  the 
subject  of  the  examination,  and  may  in  all  cases  be  safely 
omitted.  The  bequests  and  gifts  of  personalty  are  always 
omitted,  except  where  a  legacy  constitutes  a  charge  upon  the 
land,  in  which  case  it  becomes  material.  Devises  of  realty, 
other  than  the  subject  of  the  examination,  may  be  advan- 
tageously omitted,  but  the  residuary  clause,  though  couched  in 
general  terms,  should,  as  a  rule,  be  inserted. 

The  language  employed  by  the  will,  aside  from  the  strictly 
formal  parts,  should  be  closely  if  not  literally  followed,  as  well 
in  respect  to  the  property  devised  as  the  particular  estate 
therein  granted.  The  essential  features  of  a  modern  will  con- 
sist of  the  parties,  testator,  legatees  and  devisees ;  the  legacies 
which  are  a  charge  on  land ;  the  specific  devises ;  the  trusts 
and  powers ;  the  appointment  of  executors ;  the  residuary 
clause;  and  the  execution  and  attestation.84  In  drawing  the 
synopsis  the  general  form  of  presenting  conveyances  by  deed 
is  followed  as  closely  as  may  be ;  the  particular  words  em- 
ployed in  creating  the  estates  devised  are  given,   and  all  in- 

84  Mr.  Preston  says    (with   refer-  are     created;     the     conditions,     or 

ence  to  the   method   of   abstracting  conditional    limitations    by   way    of 

wills)   the  points  to  be  attended  to  executory      devise,      or      otherwise, 

are  to  show  to  whom  the  lands  are  annexed     to     the     devise     or     ap- 

devised;  the  words  used  in  descrip-  pointment;   the  charges  imposed  on 

tion  of  the  lands;  the  words  of  limi-  the  devisee;   the  indemnity,  if  any, 

tation     by     which     the     estate     is  against  seeing  to  the  application  of 

devised,  the  power,  if  any,  in  pur-  the    purchase    money,    or    mortgage 

suance  of  which  the  devise  is  made:  money;  such  powers,  if  any,  as  are 

the    words    of    modification,    or    of  material    to    the    title;     and    when 

severance   of   the   tenancy,    if   there  leasehold   lands   are   the   subject   of 

be  any;   the  words   of  qualification  the  title,  the   appointment  of  exec- 

whicl)    may    abridge    or    defeat    the  utors:  "     Prest.  on  Abst.   180. 
estate;  the  uses  and  trusts,  if  any 
32 


498  ABSTRACTS    OF    TITLE. 

artificial  expressions  rendered  with  literal  exactness.  Imper- 
fect designation  of  persons  or  property,  and  manifest  omis- 
sions, errors  and  irregularities,  are  noted  in  the  same  manner 
as  in  case  of  deeds.  The  execution,  if  regular,  may  be  passed 
without  notice,  as  the  proof  of  probate  constitutes  proof  of 
the  due  and  proper  execution  and  publication  of  the  will,  yet 
where  the  execution  is  manifestly  erroneous,  or  not  in  compli- 
ance with  law,  it  is  recommended  that  same  be  shown  as  fully 
as  in  case  of  defective  execution  by  deed,  and  be  supplemented 
by  the  special  proof  offered  on  the  hearing  before  the  probate 
court. 

§  412.  Method  of  Arrangement.  There  are  two  meth- 
ods of  showing  abstracts  of  wills :  one,  in  case  of  record  as  a 
conveyance,  as  an  independent  circumstance,  the  same  as  other 
instruments  of  conveyance,  and  forming  a  separate  link  in  the 
chain;  the  other,  in  connection  with  the  proceedings  had  in  the 
probate  court  relative  to  the  proof  of  the  will  and  the  admin- 
istration of  the  estate.  Either  method  may  be  adopted  as  will 
best  serve  the  examiner's  purpose,  but  it  is  believed  the  former 
method  possesses  advantages  over  the  latter,  and  is  that  which 
should  be  adopted  whenever  the  will  has  been  recorded  as 
directed  by  law.  In  the  event  of  the  first  named  method  be- 
ing used,  the  proof  adduced  before  the  probate  court,  or  a 
summary  thereof,  should  also  be  appended,  such  proof  being 
required  by  statute  to  be  recorded  with  the  will.  The  pro- 
ceedings relative  to  the  settlement  of  the  estate  then  follow  as 
a  separate  showing.  When  the  latter  method  is  employed,  a 
digest  of  the  will  should  be  inserted  at  the  beginning  of  the 
synopsis  of  the  proceedings.  When  conveyances  have  been 
made  by  heirs  or  devisees  prior  to  probate  or  record,  the  chron- 
ological arrangement  should  follow  the  dates  of  execution, 
rather  than  of  proof  or  record,  except  in  the  case  of  post  obit 
conveyances. 

§  413.  Practical  Examples.  Following  this  will  be 
found  a  practical  example  of  an  abstract  of  a  will  and  proof 
of  probate.  The  will  selected  is  of  the  most  simple  form,  and 
no  attempt  has  been  made  to  illustrate  special  clauses,  though 


WILLS. 


499 


an  example  of  these  occurs  in  the  form  given  in  connection 
with  the  abstract  of  probate  proceedings.  The  proof  of  pro- 
bate is  that  now  in  use  in  Wisconsin,  Minnesota  and  other 
western  States,  and  will  serve  to  indicate  the  method  of  show- 
ing these  matters  even  where  the  record  of  proof  is  different: 


Last   Will  and   Testament 85 

of 

Thomas   W.    Watson,, 

deceased. 


Dated  Oct.  10,  1880. 
Admitted  to  Probate,  May 
I,  1883. 
Recorded  July  1,  1883. 
Book  100,  page  550. 
Directs,  that  all  just  debts, 
including  funeral  expenses  and  expenses  of  administration,  be 
paid  by  his  executor.86 

Gives  and  bequeaths  to  his  wife,  Annie  Watson,  one  thou- 
sand dollars  annually,  to  be  paid,  etc.,  [set  out  such  legacies 
as  constitute  a  charge  on  the  land]  together  with  sundry  other 
bequests  and  legacies. 

Devises  and  bequeaths  to  his  son,  George  Watson,  etc.,  [set 
out  the  specific  devises]. 

Gives,  devises  and  bequeaths  all  the  residue  and  remainder 
of  his  estate  to,  etc.,  [set  out  the  residuary  bequests]. 

Appoints  John  Williams  his  executor,  etc.,  [note  the  trusts 
and  powers,  if  any]. 

Add  facts  of  execution.87 

85  If  desired,  the  ordinary  caption 
of  a  deed  may  be  used ;  as, —  to  — , 
the  nature  of  the  instrument  being 
indicated  by  its  name  in  the  mar- 
gin. The  method  employed  in  the 
example  is,  however,  the  better  way. 

86  "  The  direction  of  payments  of 
debts  and  funeral  expenses,"  ob- 
serves Mr.  Redfield,  "  is  now  merely 
formal,  except  that  as  it  may  some- 
times aid  in  the  construction  of  a 
will,  by  showing  that  the  subject 
of  the  testator's  debts  was  brought 
distinctly  to  his  mind,  at  the  time 
of  executing  his   will:"   1   Redf.   on 


Wills,  *  674.  The  direction  of  a 
testator  to  his  executors  to  pay  his 
debts  does  not  give  to  them  a  power 
of  sale  for  that  purpose,  or  vest 
them  with  any  authority  for  their 
payment,  other  than  the  law  itself 
creates,  by  expressly  charging  all 
the  property  of  a  decedent  with  the 
payment  of  his  debts,  Whether  he  die 
testate  or  intestate.  Will  of  Fox, 
52  N.  Y.  530;  Harris  V.  Douglas,  «l 
111.  406;  Carrin^on  V.  Manning's 
Heirs,   13  Ala.  fill. 

87  The      examiner      will       notice 
whether   any    of   the    witnesses    are 


500  ABSTRACTS    OF    TITLE. 

If  the  proof  of  the  will  is  appended,  as  is  usually  the  case, 
this  would  doubtless  be  sufficient  to  show  testator's  death,  but, 
if  desired,  a  note  embodying  such  information  may  be  ap- 
pended, thus: 

Note. — By  the  records  and  files  in  the  office  of  the  County 
Court  of  Kenosha  County,  Wis.,  it  appears  that  Thomas 
W.  Watson  died  on  or  about  April  28,  1883 ;  that  let- 
ters testamentary  were  granted  to  John  Williams,  May 
1,  1883. 

Where  a  codicil  is  appended  it  should  be  abstracted  as  a 
separate  instrument  and  its  terms  fully  set  forth,  particularly 
when  it  tends  to  revoke  any  provision  of  the  will,  or  alters  the 
prior  disposition  of  the  real  estate  of  the  decedent.  In  such 
case  say: 

Appended  to  the  foregoing  is, 

and  then,  as  in  case  of  the  original,  follow  in  the  margin  with, 

Codicil  to  the  last  will  and  testament,  etc., 

giving  the  date  and  substance  of  the  codicil.  With  all  wills 
filed  for  record  as  conveyances  the  law  requires  the  "  proof 
of  probate  "  to  be  also  filed.  Such  proof  is  generally  in  the 
shape  of  a  certificate  by  the  judge  or  clerk  of  the  probate 
court,  and  a  synopsis  of  same  should  immediately  follow; 
thus, 

named    in   the   will    as   devisees   or  benefit    under    a    will    is    excluded 

legatees,    and    in    case   of    a    corre-  from   being  a   witness   to   same,   or 

spondence  of  names  show  the  same.  else  the  provision  in  their  favor  is 

As  a  rule,   any  person  taking  any  rendered  void. 


WILLS. 


501 


Appended  is: 

Certificate 

Edward  Martin, 

County  Judge  of  Kenosha 

County,  Wis. 


Proof  of  will. 

Dated  July  1,  1883. 

Becites  that  on  the  loth  day  of 
March,  1883,  at  a  regular  term 
of  the  County  Court  of  Kenosha 
County,  Wis.,  pursuant  to  notice 


duly  given  as  required  by  law,  William  Jackson  and  James 
Smith,  subscribing  witnesses  to  the  last  will  and  testament  of 
Thomas  W.  Watson,  late  of  the  County  of  Kenosha,  deed, 
which  is  "  hereto  annexed,"  were  produced,  sworn  and  exam- 
ined (and  the  said  will  being  contested,  and  other  witnesses  as 
well  for  the  contestant  as  for  the  proponent  of  said  will,  hav- 
ing been  produced,  sworn  and  examined) ,88  and  proofs  having 
been  heard  before  said  court,  and  the  court  having  thereupon 
found  that  said  instrument  was  in  all  things  duly  executed 
as  his  last  will  and  testament  by  said  Thomas  W.  WatsonA 
on  the  10th  day  of  October,  1880;  that  he  was  then  of  full  age, 
and  of  sound  mind,  and  that  said  instrument  was  'duly  sub- 
scribed and  attested  (in  his  presence).89 

Thereupon  said  instrument  being  duly  proved,90  was  by 
said  court  duly  allowed,  and  probate  thereof  granted  as  and 
for  the  last  will  and  testament  of  said  Thomas  W.  Watson, 
dee'd. 

Signed  by  said  Judge,  and  the  seal  of  the  Kenosha  County 
Court  affixed. 


88  This  of  course  depends  on  local 
laws. 

89  Where  a  will  is  properly  signed 
by  the  testator  and  two  or  more 
attesting  witnesses,  both  of  whom 
testify  that  they  were  present,  and 
saw  the  testator  sign  the  will  in 
their  presence,  or  that  the  testator 
acknowledged  same,  and  that  they 
believe  he  was  of  sound  mind  and 
memory  at  the  time  of  executing 
it,  this,  in  the  absence  of  any  proof 


of  fraud,  compulsion,  or  other  im- 
proper conduct,  is  sufficient  to  make 
out  a  prima,  facie  case  and  entitle  the 
will  to  probate.  Heirs  of  Critz  v. 
Pierce,   106   111.   167. 

90  The  certificate  of  probate  of  a 
will  need  not  set  out  in  detail  the 
evidence  upon  which  the  will  was 
proved.  If  conclusions  of  law  are 
stated,  it  is  sufficient:  Mosley  V. 
Wingo,  7  Lea   (Tenn.),  145. 


502  ABSTRACTS    OF    TITLE. 

§  414.  Probate  of  Wills.  Probate  of  a  will  has  been  de- 
fined as,  the  proof,  before  an  officer  authorized  by  law,  that 
an  instrument  offered  to  be  proved  or  recorded  is  the  last  will 
and  testament  of  the  deceased  person  whose  testamentary  act 
it  is  alleged  to  be.91  It  is  the  authentication  of  the  instru- 
ment, and  that  which  gives  to  it  its  legal  effect  and  validity 
as  a  conveyance,  and  nothing,  says  Lord  Kenyon,92  "  but  the 
probate  or  letters  of  administration  with  the  will  annexed, 
are  legal  evidence  of  the  will,"  language  which  has  been  re- 
peated and  approved  by  the  Supreme  Court  of  the  United 
States.93  A  will,  therefore,  which  has  not  been  admitted  to 
probate,  though  admissible  perhaps  in  connection  with  proof 
of  adverse  possession,  is  not  evidence  of  title  in  a  court  of 
law,94  nor  would  it  afford  constructive  notice  if  recorded. 

§  415.  Effect  of  Probate.  The  probate  of  a  will,  if  de- 
creed by  a  court  of  competent  jurisdiction,  establishes  the  facts: 
(1)  that  the  instrument  in  question  is  the  last  will  of  the 
testator  and  that  it  was  duly  executed  and  published  with  all 
solemnities  required  by  law;  (2)  that  the  testator  at  the  time 
of  executing  the  instrument,  was  of  sound  and  disposing  mind 
and  memory,  capable  of  understanding  the  act  he  was 
doing,  and  the  relation  in  which  he  stood  to  the  object  of  his 
bounty,  and  to  the  persons  to  wmorn  the  law  would  have  given 
his  property  if  he  had  died  intestate ;  ( 3 )  that  the  instru- 
ment was  executed  without  fear,  fraud  or  undue  influence  by 
which  his  own  intentions  were  controlled  and  supplanted  by 
those  of  another;  (4)  that  he  executed  the  instrument  animo 
testandi,  wTith  an  understanding  and  purpose  that  it  should 
be  his  last  will  and  testament;  95  and  (5)  it  is  presumptive 
evidence  of  the  death  of  the  person  whose  will  it  purports  to 

oi  Bou.  Law  Diet.   378;   Pettit  V.  thews,   53   Ala.    1;    Pitts  v.   Melser, 

Black,  13  Neb.   142.  72  Ind.,  469;  Shumway  V.  Holbrook, 

92  Rex  v.  Inhab.  of  Neatlierseal,  4  1  Pick.  114;  Ochoa  v.  Miller,  59 
T.  R.   (Eng.)   258.  Tex.   460;    Pettit   V.   Black,    13  Neb. 

93  Armstrong  v.  Lear,   12  Wheat.  142. 

175.  95  Barker   V.    Comins,    110   Mass. 

94  Willamette,    etc.,    Co.    v.    Gor-       477. 
don,    6    Oreg.    175;    Wood   v.    Mat- 


WILLS.  503 

establish.90  Such  decree  is  generally  regarded  as  in  the  na- 
ture of  a  judgment  in  rem,91  and  in  the  absence  of  statutory 
provisions,  is  conclusive  as  against  all  the  world,  as  to  the 
validity  of  the  will,98  and  affirms  the  title  of  the  beneficiary 
under  it  from  the  time  of  the  testator's  death,  relating  back  so 
as  to  make  valid  whatever  has  been  previously  done,  which, 
under  the  will,  after  probate,  the  beneficiary  could  lawfully 
have  done.99 

But,  though  probate  establishes  the  sufficiency  of  the  will, 
and  confirms  the  claims  of  those  holding  under  it  so  far  as  to 
make  it  evidence  of  title,  it  does  not  determine  the  title  to 
the  property,  nor  establish  the  validity  of  any  devise  given  by 
it,  the  will  having  no  greater  effect  after  probate  than  other 
legal  conveyances.1 

§  416.  Foreign  Probate.  In  order  to  entitle  a  devisee 
of  lands  under  a  will  probated  in  a  foreign  jurisdiction,  to  de- 
duce legal  title  to  same  in  the  courts  of  the  State  where  the 
land  is  located,  it  is  frequently  necessary  that  the  will  be  also 
probated  in  the  local  courts.  This  matter  is  governed  by  stat- 
ute which  generally  provides  that  the  copy  of  the  will  pre- 
sented must  be  accompanied  by  a  certificate  of  the  foreign 
probate  and  duly  authenticated,  these  together  constituting  the 
one  instrument  or  subject-matter  to  be  acted  upon  under  the 
statute;  and  all  are,  as  a  rule,  essential  to  authorize  the  pro- 
bate court  to  exercise  jurisdiction.2  Whenever  this  ancillary 
j)robate  is  resorted  to  it  is  generally  allowed  as  a  matter  of 
course  and  without  inquiring  into  the  validity  of  the  will  or 

96  Carroll  v.  Carroll,  6  Thornp.  &  99  Stuphen  V.  Ellis,  35  Mich.  446; 
C.  (N.  Y.)  294;  Belden  v.  Meeker,  Allaire  V.  Allaire,  37  N.  J.  L.  312; 
47  N.  Y.  307.  Dublin  v.  Chadbourn,  16  Mass.  433. 

97  Hall  v.  Hall,  47  Ala.  290;  Crip-  i  Fallon  v-.  Chidester,  46  Iowa, 
pen  v  Dexter,  13  Gray  (Mass.),  330;  588;  Greenwood  v.  Murray,  26 
State  v.  McGlynn,  20  Cal.  233.  Minn.  259;   Ware  v.  Wisner,  4  Mc- 

98  Brock    v.    Frank,    5    Ala.    85;  Crary   (C.  Ct.),66. 

Janes    v.    Williams,     31    Ark.    175;  2  Pope  v.   Cutler,   34   Mich.    150; 

Tucker  v.  Whitehead,  58  Miss.  762.       Ward  V.  Oates,  43  Ala.  515. 
In  re  Williams,  1  Lea  (Tenn.),  529; 
Orr  v.  O'Brien,  55  Tex.  149. 


504  ABSTRACTS    OF    TITLE. 

the  sufficiency  of  the  proofs  upon  which  the  court  granting  the 
original  probate  acted,  provided  such  original  probate  was 
granted  by  a  court  of  competent  jurisdiction  and  is  properly 
authenticated.3 

But  even  where  ancillary  probate  is  not  required  to  estab- 
lish a  foreign  will  it  may  yet  be  essential  to  perfect  title  in 
the  devisees.  Thus,  a  creditor  of  a  decedent  is  not  required 
to  go  into  a  foreign  jurisdiction  to  prove  his  claim.  If  such 
decedent  leaves  land  in  the  State  of  the  creditor's  domicile 
it  will  be  affected  by  the  statutory  lien  of  the  debt  and  may 
be  sold  in  satisfaction  thereof.  Hence,  it  may  often  become 
necessary  or  expedient  to  probate  a  foreign  will  for  the  sole 
purpose  of  extinguishing  creditors'  liens,  and  where  the  prop- 
erty under  examination  is  valuable  this  course  can  never  be 
safely  omitted  unless  the  statute  has  run  against  possible  debts. 
In  any  event  an  attorney  examining  title  should  note  the  ab- 
sence of  ancillary  probate  of  a  foreign  will  and  found  such 
objections  upon  the  fact  as  he  may  deem  proper. 

§  417.  Abstract  of  Probate  Proceedings.  It  is  esti- 
mated that  about  once  in  every  twenty-five  years  all  the  real 
property  in  the  country  passes  under  the  supervision  of  the 
probate  courts,  and  whether  the  estimate  be  based  on  correct  or 
incorrect  data,  it  is  certain  that  there  are  but  few  titles  of  twen- 
ty-five years'  duration  that  do  not  show  testamentary  convey- 
ances or  descents.  The  records  and  proceedings  of  these 
courts,  therefore,  have  a  direct  and  important  bearing  on  every 
title  of  long  standing,  and  are  among  the  muniments  that  go 
to  give  stability  and  security  to  the  possession  of  the  party  as- 
serting such  title. 

The  ordinary  proceedings  of  county  and  probate  courts 
which  have  a  direct  influence  upon  land  titles  are:  the  pro- 
bate of  wills  and  issuance  of  letters  testamentary  and  of  ad- 
ministration;    the   inventory   and   collection   of   the   effects   of 

3  Brock  v.  Frank,  51  Ala.  89;  Ap-       v.  Hart,  87  N.  Y.  19;  Markwell  v. 
person  v.  Bolton,  29  Ark.  418;  New-       Thorne,  28  Wis.  548. 
man  v.  Willetts,  52  111.  98;  Russell-   . 


WILLS.  505 

deceased  persons ;  the  proof  of  payment  of  debts  and  legacies ; 
the  assignment  of  dower  and  homesteads ;  the  sale  of  lands  by 
executors  and  administrators;  the  allowance,  distribution  and 
partition  of  the  estates  of  deceased  persons;  and  incidentally 
of  proceedings  relative  to  guardians  and  wards,  adoption,  etc. 
Sometimes  the  peculiar  exigencies  of  the  case  may  include  all 
of  the  different  matters  just  enumerated;  again  the  desired 
end  may  be  attained  with  a  showing  of  but  one  or  two.  So, 
too,  it  will  sometimes  be  necessary  that  a  very  full  exemplifica- 
tion must  be  given  of  the  matters  presented  and  the  action  had 
thereon,  while  under  other  circumstances  only  a  brief  mention 
will  be  required.  The  matter  will  therefore  rest,  in  a  large 
measure,  in  the  discretion  of  the  examiner. 

Upon  the  probate  of  wills,  the  abstract  of  the  proceedings 
should  show :  the  proof  of  the  will ;  4  the  acceptance  or  renun- 
ciation of  the  trust  by  the  executor ;  the  issuance  of  letters  testa- 
mentary,5 and  qualification  of  the  executor;  the  inventory  of 
real  estate ;  the  proof,  allowance  and  payment  of  claims.  This 
much  is  indispensable,  but  other  steps  and  proceedings  may 
often  be  profitably  shown.  The  degree  of  detail  to  be  ob- 
served must  be  governed  in  most  respects  by  the  judgment  of 
the  examiner  in  the  absence  of  instructions  from  the  client. 
A  summary  is  presented  by  way  of  illustration,  and  which, 
perhaps,  is  full  enough  for  ordinary  cases: 

4  A   transcript    of   the   record    of  will   be    prima   facie   evidence,    and 

probate    of    a    will    devising    lands,  will  of  itself  be  sufficient  to  estab- 

made  before   a    proper   tribunal,    is  lish  title,  if  not  overcome  by  coun- 

competent   evidence   of   title    in    an  ter  proof:     Allaire  V.  Allaire,  37  N. 

action   of   ejectment,    if    the   record  J.  L.  312. 

contains    the    proofs    taken    before  5  The  issuance  of  letters  presump- 

the  court,  as  required  by  the  stat-  tively  establishes  the  fact  of  death: 

ute;  and,  if  the  proofs  contained  in  Carroll  v.   Carroll,   6  Thomp.   &  C. 

the  record  show  that  the  will   was  (N.   Y. )    294;    Holmes   v.   Johnson, 

executed    with    all    the    formalities  42  Pa.  St.   159;   Pick   v.  Strong,  36 

required    by    statute,    the    probate  Minn.  303. 


506  ABSTRACTS    OF    TITLE. 


In  the  matter  of  the  estate 

of 
William   H.   Black, 
deceased. 


County  Court,  Kane  county. 
In  Probate. 

Case  No.  3,  in  Box  153.G 
Will  of  William  H.  Black. 
Dated  May  2,  1877. 
Filed  October  13,  1880. 
Proven  and  admitted  to  record,  January  28,  1881. 
Recorded  in  Vol.  2,  page  883. 
Said  testator  disposes  of  his  estate  as  follows: 
Directs  the  payment  of  all  his  just  debts  and  funeral  ex- 
penses. 

Devises  to  his  executor  (or  his  successor)  his  "  home  place," 
consisting  of  house  and  barn,  and  about  two  acres  of  land  on 
the  west  side  of  Park  Place,  and  running  through  to  Tenth 
street,  and  lying  between  Forrest  avenue  and  Grinnell  street, 
in  the  city  of  Elgin,  Kane  county,  Ills.,  in  trust,  to  lease  same 
or  to  sell  same  and  apply  income  and  proceeds  for  the  use  and 
comfort  of  his  wife,  Anna  Black,  during  her  natural  life, 
and  for  the  support  and  education  of  his  son,  Walter  Black,, 
and  at  the  death  of  said  wife,  if  undisposed  of,  to  be 
transfeired  and  conveyed  to  his  son,  Walter  Black,  if  then 
living,  or  to  his  issue,  if  any,  if  he  be  not  living,  or  to  testa- 
tor's heirs  at  law,  if  his  said  son  shall  be  then  dead,  leaving  no 
issue. 

Gives  and  devises  to  his  nephew,  John  Black,  son  of  his 
brother,  James  Black,  etc. 

If  it  is  desired  to  set  out  the  entire  will,  which  will  seldom 
be  necessary,  the  devises  and  bequests  will  follow  here  in  narra- 
tive form.  As  the  inquiry  will  rarely  cover  more  than  one 
specific  tract,  the  particular  devise  which  has  reference  to  such 
tract  is  shown  in  detail,  and  general  reference  made  to  all 
others;  as, 

Devises  to  various  other  persons,  certain  real  estate  not  now 
in  question  (or,  not  covered  by  this  examination). 

6  This  has  reference  to  the  depository  of  all  the  papers  in  the  case. 


wiixs.  507 

Unless  there  are  legacies  which  are  charged  upon  the  land, 
the  personal  bequests  may  be  disregarded  except  the  residuary 
clause  which  next  follows : 

Gives,  devises  and  bequeaths  all  the  rest  and  residue  of  his 
property,  real  and  personal,  including  lapsed  legacies  and 
devises,  unto  his  son,  Walter  Black,  subject  to  the  payment  of 
the  following  annuities,  to  wit: 

To  his  mother,  etc.,  [set  out  the  annuities]. 

Appoints  his  brother,  James  Black,  sole  executor  and  trus- 
tee, and  in  case  of  his  death,  declination,  resignation  or  inabil- 
ity to  act,  directs  that  Clarence  D.  Perry  act  in  his  place, 
waiving  security,  and  giving  his  executor  full  power  to  sell 
any  part  or  parts  of  the  real  estate  herein  devised  to  his  son 
Walter,  at  public  or  private  sale,  and  to  give  good  and  suffi- 
cient deeds  thereof  to  the  purchaser  or  purchasers  so  that  they 
shall  not  be  answerable  for  the  application  of  the  purchase 
money,  and  in  case  of  such  sales  the  proceeds,  after  paying 
debts,  legacies  and  annuities,  to  go  to  his  son  Walter  as  part  of 
the  residue  of  his  said  estate. 

Three  witnesses. 

Renunciation  of  James  Black  of  his  appointment  as  exec- 
utor and  trustee,  filed  January  28,  1881. 

Petition  of  Clarence  D.  Perry  for  proof  of  will  and  letters 
testamentary,  filed  January  29,  1881. 

Said  petition  represents  that  William  H.  Black  died  testate 
May  27,  1880,  leaving  him  surviving  Anna  Black,  his  widow, 
and  Walter  Black,  his  son,  his  only  heir  at  law. 

Sworn  to  Nov.  26,  1880, 

Letters  testamentary  to  Clarence  D.  Perry,  issued,  dated 
Jan'y  31,  1881.     Recorded  in  Vol.  2,  pg.  273. 

Bond  in  sum  of  $80,000.00,  security  waived,  filed  and  ap- 
proved J  any  31,  1881.     Recorded  in  Vol.  2,  pg.  273. 

Warrant  to  appraisers  issued,  dated  January  31,  1881. 

Appraisers'  report  filed  and  approved  June  8,  1881,  shoivs 
no  property  belonging  to  said  estate  subject  to  appraisement. 


508  ABSTKACTS    OF    TITLE. 

Appraisement  of  widow's  award  filed  and  approved  June  8, 
1881.     Total  value,  $2,800.00. 

Inventory  filed  and  approved  June  8,  1881.  Recorded  in 
Vol.  10,  pg.  627. 

Mentions  real  estate  as  follows: 

Lots  19  and  20,  Block  1,  etc. 

Proof  of  publication  and  posting  of  notices  for  adjudication 
filed  July  12,  1881,  approved  in  open  court  July  18,  1881. 

Adjudication  ordered  July  18,  1881. 

Sundry  claims  filed  and  allowed  amounting  to  the  sum  of 
$5,01+2.80. 

Continue  in  this  manner,  showing  all  important  steps,  un- 
til final  settlement  and  discharge  of  executor.  The  synopsis 
should  close  with  an  abstract  of  the  final  order  showing  pay- 
ment of  the  widow's  award  and  of  all  proved  debts. 


CHAPTER  XXIV. 

LIENS,  CHARGES,  AND  INCUMBRANCES. 


418. 

Liens   generally. 

§  429. 

Municipal    liens. 

419. 

How  created. 

430. 

Official  bonds. 

420. 

Operation  and  effect. 

431. 

Leases. 

421. 

Method  of  arrangement. 

432. 

Vendor's  liens. 

422. 

Mortgages. 

433. 

Mechanic's  liens. 

423. 

Dower. 

434. 

Continued  —  Priority. 

424. 

Judgments  and  executions. 

435. 

Estate  to  which  the  lien  at- 

425. 

Judicial  and  execution  sales. 

taches. 

426. 

Lis     pendens     and     attach- 

436. 

Limitation  of  lien. 

ment. 

437. 

Assignability. 

627. 

Decedent's  debts. 

438. 

Foreclosure. 

428. 

Taxes. 

§  418.  Liens  Generally.  A  lien  is  defined  as  a  hold  or 
charge  which  one  person  has  upon  the  property  of  another  as 
a  security  for  some  debt  or  charge,1  and  in  its  broad  sense 
would  cover  all  burdens,  charges  or  incumbrances  placed  on 
land,  including  mortgages,  judgments,  taxes,  etc.,  as  well  as 
common  law  and  statutory  liens,  and  liens  arising  by  implica- 
tion of  law.  In  its  more  restricted  signification  it  is  used  to 
denote  certain  preferred  or  privileged  claims  given  by  statute 
or  arising  by  implication  of  law,  and  indicates  a  mere  right  to 
hold  the  property  until  the  claim  has  been  satisfied.  Even 
in  this  latter  sense,  as  it  is  now  employed  in  conveyancing  and 
the  compilation  of  abstracts,  its  popular  meaning  confines  it 
to  certain  classes  enumerated  by  statute ;  as  the  lien  of  me- 
chanics and  material  men,  attachment,  lis  pendens,  etc.,  and 
liens  arising  by  operation  of  law,  as  decedent's  debts,  purchase 
money  liens,  etc. 

Liens  are  also  classified  as  legal  and  equitable.     The  latter, 

1  2  Bou.  Law  Diet.  47 

509 


510  ABSTRACTS    OF    TITLE. 

being  generally  unknown  to  the  world,  and  frequently  operat- 
ing injuriously  on  the  rights  of  creditors  and  purchasers,  are 
never  enforced  except  in  cases  where  the  right  is  clearly  and 
distinctly  made  out.2  The  so-called  "  vendor's  lien  "  is  a  con- 
spicuous example  of  this  class. 

§  419.  How  Created.  Liens  upon  lands  are  created  by 
the  statute,  to  secure  the  payment  of  taxes,  and  other  public 
debts;  to  protect  estates  raised  out  of  or  incident, to  the  mar- 
riage relation ;  to  effectuate  the  judgments  of  courts  by  allow- 
ing the  land  of  the  defendant  to  be  taken  in  execution,  as  well 
as  to  anticipate  such  judgments  by  way  of  attachment  and 
lis  pendens;  to  secure  the  payment  of  debts  of  deceased  per- 
sons, and  to  secure  the  wages  of  laborers  and  mechanics.  They 
are  also  created  by  the  direct  act  of  the  parties,  as  by  leases, 
mortgages,  etc.,  and  arise  in  a  number  of  cases  by  operation 
or  implication  of  law,  as  to  secure  unpaid  purchase  money,  etc., 
these  latter  being  known  as  equitable  liens.  Intending  pur- 
chasers are  chargeable  with  notice  of  all  statutory  liens,  the 
provisions  of  the  statute  having  been  substantially  complied 
with,  but  will  take  the  land,  where  the  sale  is  made  in  good 
faith  and  for  value,  freed  from  the  burden  of  equitable  liens  of 
which  they  had  no  notice. 

§  420.  Operation  and  Effect.  Unlike  a  conveyance,  a 
lien;  however  created,  confers  no  estate  in,  or  title  to,  the  prop- 
erty to  which  it  attaches,  and  may  be  discharged  at  any  time 
before  foreclosure  by  the  payment  of  the  sum,  or  performance 
of  the  obligation,  for  which  the  property  is  held. 

§  421.  Method  of  Arrangement.  Liens,  charges  and  in- 
cumbrances of  every  kind,  with  but  one  exception,  are  shown, 
not  in  the  regular  course  of  title,  but  in  appendices  to  same, 
and,  for  better  convenience,  under  classified  heads.  The  ex- 
ception is  in  case  of  mortgages,  which,  following  the  custom 
which  prevailed  when  such  instruments  were  conveyances  of 
the  legal  estate,  are  shown  in  regular  chronological  order  in 

2  Conover     v.     Warren,     1     Gilm.     (111.)     498;     see    Walker    v.    Mat- 
thews,  58   111.   196. 


LIENS,    CHARGES,    AND    INCUMBRANCES.  511 

the  chain.  This  arrangement  possesses  many  advantages  over 
any  other,  the  chief  one  being  to  preserve  the  symmetry  of  the 
title,  which  enables  counsel  to  obtain  a  clearer  view  thereof 
than  could  possibly  be  obtained  if  the  liens  and  charges  were 
inserted  in  the  chain  in  their  order  of  time.  An  analysis  of 
the  abstract  should  always  be  prepared  in  every  long  examina- 
tion, and  the  effect  of  liens,  considered  with  reference  to  the 
fee,  can  more  easily  be  determined  by  this  arrangement  on  the 
compilation  of  such  analysis  than  if  they  were  allowed  to  inter- 
fere with  the  primary  questions  raised  by  the  actual  convey- 
ances. These  points  will  be  more  fully  demonstrated  in  treat- 
ing of  "  Opinions  of  Title." 

§  422.  Mortgages.  The  ancient  doctrine,  by  which  mort- 
gages were  regarded  as  conveyances  of  the  legal  estate,  no 
longer  obtains  in  the  United  States,  or  at  least  but  in  a  very 
modified  form,  while  in  a  majority  of  the  States  they  are  re- 
garded simply  as  liens  on  land  to  secure  the  payment  of  in- 
debtedness.3 Considered  simply  as  liens,  they  might,  before 
default  or  foreclosure,  with  propriety,  be  shown  with  other 
liens,  and  it  is  the  custom  of  some  examiners  to  follow  this 
method  of  arrangement ;  after  default  and  foreclosure  they  be- 
come essentially  muniments  of  title,  and  must  appear  in  the 
chain  in  regular  chronological  sequence.  Mortgages  followed 
by  satisfaction  are  but  dead  matter,  and  when  forming  part  of 
the  chain  are  positive  hindrances  in  passing  the  title ;  such 
mortgages  might  be  shown  in  appendices  under  the  head  of 
"  satisfied  liens,"  the  main  object  being  simply  to  show  a  proper 
and  legal  release. 

§  423.  Dower.  The  inchoate  right  of  dower,  during  the 
lifetime  of  the  husband,  is  at  least  a  cloud  upon  the  title  in 
the  hands  of  the  husband's  alienee,  which,  in  the  event  of  his 
death  before  that  of  the  wife,  develops  into  a  positive  charge 

3  See  Chap   XXI,   Odell   v.  Mont-  -  Holmes,  32   Ind.  497 ;   Carpenter  v. 

ross,  68  N.  Y.  499;  Gorham  V.  Ar-  Bowen,  42  Miss.  28;  Woods  v.  Ilil- 

nold,  22  Mich.   247;    White  V.   Rit-  debrand,  46  Mo.  284;  Actor  v.  Hoyt, 

tenmeyer,   30   Iowa,   268;    Vason   v.  5  Wend.  602;  Parsons  v.  Noggle,  23 

Ball,     56     Ga.     268;      Fletcher     v.  Minn.  328. 


512  ABSTRACTS    OF    TITLE. 

upon  the  land.4  In  the  first  event  it  is  hardly  a  lien,  while 
in  the  latter  it  is  more  than  a  lien,  but  in  both  instances  it  will 
appear  only  inferentially,  and  can  not  be  shown  affirmatively 
in  the  abstract. 

§  424.  Judgments  and  Executions.  Judgments,  from 
the  time  of  their  rendition,  and  executions,  from  the  period  of 
issuance  or  levy,  create  statutory  liens,  which  necessitate  a  full 
exposition  in  the  abstract.  The  subject  is  reserved  for  ample 
treatment  in  a  subsequent  chapter. 

§  425.  Judicial  and  Execution  Sales.  The  purchaser 
of  lands  sold  on  execution  acquires  by  his  purchase  no  more 
than  a  lien  upon  the  lands  for  the  amount  of  his  bid,  and  in- 
terest during  the  period,  if  any,  allowed  for  redemption.  He 
does  not  obtain  the  legal  title ;  and  if  the  lands  are  subject  to 
a  mortgage,  he  does  not  become  the  owner  of  the  equity  of 
redemption  until  after  the  expiration  of  the  period  allowed  for 
redemption  from  the  execution  sale.5 

§  426.  Lis  Pendens  and  Attachment.  A  pending  suit 
involving  title  conveys  notice  to  intending  purchasers,  and 
charges  the  land,  in  whosesoever  hands  it  may  be,  with  the  con- 
sequences of  whatever  decree  may  be  made,  while  an  attachment- 
reserves  the  land  to  satisfy  any  judgment  that  may  be  rendered 
in  the  suit  and  creates  a  lien  in  favor  of  such  judgment  in 
advance  of  its  rendition.  The  attachment  is  a  lion  from  the 
time  of  the  levy,6  but  in  the  case  of  land  this  means  the  filing 
of  the  certificate  in  the  office  of  the  recorder  of  deeds.7 

§  427.  Decedent's  Debts.  The  debts  of  a  deceased  per- 
son are  a  lien  upon  the  lands  of  such  decedent  in  the  hands 
of  his  heirs  or  devisees,  and  the  lien  continues  until  paid  or 
barred  by  the  statute.     If  the  heir  aliens  the  lands,  the  alienee 

4  An  inchoate  right  of  dower  out-  Farmers  Bank  of  Saratoga  v.  Mer- 

standing  is  a  defect  in  the  title,  and  chant,  13  How.    (N.  Y.)    10. 
an    incumbrance    upon    the    estate:  0  Martin  V.  Dryden,  1  Gilm.  (111.) 

Wright  v.  Young,  6  Wis.  127.  187. 

5Vaughan   V.   Ely,   4   Barb.    159;  7  Hall    v.  Gould,   79  111.   16. 


LIENS,    CHARGES,    AND    INCUMBRANCES.  513 

holds  them  subject  to  this  lien,  and  his  title  may  be  defeated 
by  a  subsequent  sale  by  the  administrator.8 

§  428.  Taxes.  The  lien  of  the  State  for  taxes  attaches  to 
all  lands  subject  to  taxation  on  some  day  stated,  usually  the 
first  day  of  May  of  each  year,  and  every  person  owning  land,  on 
that  day  is  liable  for  the  taxes  due  thereon  for  the  year.9  They 
take  priority  of  all  other  liens  under  the  principles  applicable 
to  the  prerogatives  of  sovereignty.10  The  subject  will  be  dis- 
cussed further  on. 

§  429.  Municipal  Liens.  Liens  may  be  created  upon  the 
lands  of  individuals  and  corporations  by  ordinances  of  cities 
for  municipal  expenses ;  lighting,  cleaning  or  repairing  streets ; 
public  improvements,  etc.  All  questions  relative  to  the  effect 
of  municipal  ordinances  considered  as  liens,  are  local  and  statu- 
tory. 

§  430.  Official  Bonds.  A  peculiar  class  of  liens  arises  in 
many  States  from  official  bonds,  which  are  declared  to  be  liens 
on  all  the  real  estate  held  jointly  or  severally  by  the  officers 
giving  same,  and  their  sureties,  from  the  time  of  filing  the 
bonds  until  such  officers  shall  have  been  honorably  discharged 
from  their  trusts.  These  bonds  are  most  frequently  required 
from  collectors  of  taxes,  and  it  would  seem,  that  where  any 
of  the  parties  vendors  named  in  the  abstract,  during  the  period 
in  which  an  action  may  be  brought  on  an  official  bond,  have 
held  this  position,  or  have  been  a  surety  for  any  such  officer, 
an  examination  should  be  made  for  liens  of  this  nature.  As 
the  bonds  are  required  to  be  filed  or  recorded  in  some  of  the 
designated  public  offices  of  the  county,  the  files  or  records 
'  should  be  regularly  inspected  as  often  as  occasion  may  require, 
and  references  obtained  to  the  information  thereby  disclosed. 
The  indices  to  the  information  thus  obtained  may  consist  of 
special  volumes,  but  a  better  way  is  to  post  same  in  the  "  ir- 

8  Vansyckle  v.  Richardson,  13  111.  lien    has    reference    to    the    day    on 

171;  Hill  v.  Treat,  67  Me.  501;  and  which    the    citizen    is    compelled    to 

see  Rosenthal  v.  Renick,  44  111.  202.  list  his  land  for  taxation. 

8  Almy  v.  Hunt,  48   111.  45.     The  io  Dunlap  V.  Gallatin   Co.,   15    111. 

date   of   the   commencement    of   the  7;  Dennis  V.  Maynard,  15  111.  477. 
33 


514  ABSTRACTS    OF    TITLE. 

regular  "  index  where  the  names  of  the  bounden  individuals 
will  always  be  found  when  compiling  the  chain.  Usually 
where  a  bond  has  the  effect  of  a  lien,  the  principal  and  his 
sureties  are  entitled  to  have  a  discharge  entered  whenever  the 
operation  of  the  bond  has  ceased,  and  where  the  obligation  is 
discharged,  by  proper  entries,  it  may  be  disregarded  in  making 
up  the  abstract.  Where  the  bond  is  apparently  a  subsisting 
lien,  it  must  be  shown  in  the  same  manner  as  other  liens.  In 
abstracting  these  bonds,  the  general  form  already  given  may 
be  followed,  the  essential  particulars  being  the  parties,  penalty 
and  condition  of  the  obligation,  which  should  be  fully  stated.11 
It  has  been  held  that  the  statutory  lien  created  by  giving  an 
official  bond  does  not  in  any  way  affect  the  homestead  of  the 
person  giving  same,12  but  with  this  exception,  it  attaches  to  all 
the  real  estate  then  owned  by  the  obligor  or  his  sureties,  and 
also,  as  in  the  case  of  a  judgment,  to  all  after  acquired  lands.13 
§  -131.  Leases.  A  subsisting  lease  is  rather  in  the  nature 
of  a  charge  or  incumbrance  on  the  fee  than  a  lien.  It  confers 
a  right  of  possession,  according  to  its  import,  to  the  exclusion 
of  the  owner  of  the  fee  or  reversion.  Considered  in  this  light 
and  it  can  be  viewed  in  no  other,  it  does  not  properly  come 
within  the  chain  of  title,  but  is  appended  to  it,  and  should  be 
shown  in  the  abstract  after  the  course  of  title  has  been  traced. 
When  exhibited  in  its  proper  order  of  time  as  a  part  of  the 
chain  it  may,  perhaps,  be  more  readily  considered  with  re- 
spect to  its  effect  on  subsequent  conveyances,  but  it  is  the 
experience  of  the  writer  that  correct  estimates  of  title  are  more 
easily  and  correctly  arrived  at  by  keeping  the  fee  disassociated 
from  all  minor  estates.  The  better  plan,  therefore,  seems  to 
be  to  show  leases  among  the  appendices.  Should  the  term 
extend  over  a  long  period  of  time,  with  numerous  assignments 

11  As   to   the   nature,   effect    and  12  Trustees    of    School    v.   Hovey, 

construction   of   official   bonds,    con-  94  111.  394. 

sidered    in    their    relation    to    real  13  Crawford  V.  Richeson,   101   111. 

estate,    consult    Richeson    V.    Craw-  351. 
ford,  94   111.   165;   and  Crawford  V. 
Richeson,   101  111.  351. 


LIENS,    CIIAEGES,    AND    INCUMBRANCES.  515 

or  transfers  of  any  interest  less  than  the  term,  the  leasehold 
should  be  traced  in  a  separate  chain,  with  proper  subheadings 
indicating  the  purport  of  the  search. 

§  432.  Vendor's  Liens.  Where  there  is  an  express  reser- 
vation made  in  a  deed  of  the  lien  of  the  vendor,  this  is  equiva- 
lent to  a  mortgage  taken  for  the  purchase  money  contempo- 
raneously with  the  deed.  In  fact  the  purchaser  is  practically 
in  the  same  condition  as  if  he  had  received  a  deed  and  given 
a  mortgage  for  the  purchase  money,  and  he  has  the  right  to 
redeem.14 

But  in  addition  to  this  form  there  is  a  recognized  lien  of 
the  vendor  for  unpaid  purchase  money  which  is  not  based 
upon  contract ;  nor  is  it  an  equitable  mortgage  or  resulting 
trust,  but  an  equity  which  is  raised  and  administered  by  the 
courts,  who  enforce  or  deny  it  as  the  merits  of  each  particular 
case  may  seem  to  demand.  It  is  never  allowed  to  override  or 
take  priority  of  equities  or  rights  of  third  persons,  which  have 
attached  in  ignorance  of  such  vendor's  equity,  and  is  not 
in  this  respect  like  a  mortgage,  or  any  other  lien  created  by 
express  contract,  or  even  by  statute.15  Under  the  application 
of  this  doctrine  a  purchaser  is  not,  in  equity,  the  owner  ad- 
versely to  the  lien  of  his  vendor,  but  is  treated  as  a  trustee 
for  him  until  the  purchase  money  is  paid.  The  vendor's  lien 
exists  against  such  purchaser,  and  against  volunteers  and  pur- 
chasers under  him  with  notice  of  his  having  an  equitable  title 
only,16  or  with  notice  of  the  vendor's  equitable  lien.17  A 
vendor's  lien,  of  the  character  now  under  consideration,  is  per- 
sonal in  its  nature18  and  is  raised  by  construction  of  equity 

14  King  v.  Y.  M.  Assn.,  1  Woods,  Swan  v.  Benson,  31  Ark.  728; 
386;  Smith  v.  Rowland,  13  Kan.  Harshbarger  v.  Foreman,  81  111. 
245;  Carpenter  v.  Mitchell,  54  111.  364;  Madden  V.  Barnes,  45  Wis. 
126.  135. 

15  Allen  V.  Loring,  34  Iowa,  499;  IT  Graves  V.  Coutant,  31  N.  J. 
Swan  v.  Benson,  31  ArK,  728;  Eq.  763;  Wilson  v.  Lyon,  51  111. 
Moody  v.  Fislar,  55  Ind.  592;  Mosh-  166. 

ier  v.  Meek,  80  111.  79.  18  Jones    v.    Doss,    27    Ark.    518; 

i«  Walton  v.  Hargroves,  42  Miss.  Bowlin  V.  Pearson,  4  Baxter 
18;   Burch   V.  Carter,  44  Ala.    115;        (Tenn.),  341. 


516  ABSTKACTS    OF    TITLE. 

in  favor  of  the  vendor  only.19  It  is  not  a  matter  of  sale  and 
can  not  be  assigned,  even  by  express  language,  with  the  note 
taken  for  the  purchase  money,20  and  an  assignment  of  the  notes 
will,  as  a  rule,  extinguish  the  lien,21  as  will  also  the  taking  of 
a  distinct  and  independent  security.22 

Inasmuch  as  a  vendor's  lien,  as  just  described,  is  secret, 
unknown  to  the  world,  and  often  productive  of  harm,  it  will 
not  be  extended  beyond  the  requirements  of  the  settled  prin- 
ciples of  equity,  and  such  liens  are  not  encouraged  by  the 
courts.23  It  is  not  apparent  on  perusal  of  the  abstract,  and 
will  not  affect  a  purchaser  for  value  and  without  notice. 

§  433.  Mechanic's  Liens.  A  mechanic's  lien  is  the  crea- 
ture of  statute,  and  depends  for  its  validity  solely  upon  the 
act  creating  it.  The  act  itself  is  an  innovation  upon  the  com- 
mon law  affecting  property  and  rights  of  property,  as  it  au- 
thorizes land  to  be  incumbered  without  or  against  the  con- 
sent of  the  owner,  and  without  a  resort  to  legal  process  or  ju- 
dicial action.  Such  an  act  can  not  be  extended  in  its  opera- 
tion and  effect  beyond  the  fair  and  reasonable  import  of  the 
words  used,  and  whoever  asserts  the  lien  must  bring  himself 
within  its  terms,  and  the  lien  must  be  shown,  not  only  to  have 
been  regular  and  valid  in  its  inception,  but  to  be  a  continuing 
and  existing  lien  under  the  statute-24  The  design  of  the  law 
is  to  protect  the  mechanic,  laborer,  and  material  man  to  the 
extent  of  services  performed  or  materials  furnished.  The  lien 
is  absolute  to  the  extent  of  the  owner's  interest  in  the  land  af- 
fected, and  can  not  be  divested  by  a  sale  or  transfer  of  same 

19  Lindsey  V.  Bates,  42  Miss.  397;  150;  Stuart  V.  Harrison,  52  Iowa, 
Small  v.  Stagg,  95  111.  39.  511;    Neal   v.    Speigle,   33  Ark.   63; 

20  Hect   V.   Spears,   27   Ark.   229 ;  Stevens   v.    Rainwater,   4   Mo.   App. 
Markoe  v.  Andras,  67  111.  34.     But  292;  Cowl  v.  Varaum,  37  III.  181. 
see  contra,  Bill  v.  Mason,  42  Iowa,  23  Cowl   V.   Varnum,    37   111.   181, 
330.  Doolittle  v.  Jenkins,   55   111.  400. 

21  Pillow  v.  Helm,  7  Baxter  24  Mushlitt  v.  Silverman,  50  N. 
(Tenn.),  545;  Hightower  v.  Rigsby,  Y.  360;  Dinkins  V.  Bowers,  49  Miss. 
56  Ala.  126;  Bonnell  V.  Holt,  89  HI.  219;  Rothgerber  v.  Dupy,  64  111. 
71.  452. 

22  Anderson    v.   Donnell,    66    Ind. 


LIENS,    CHARGES,    AND    INCUMBRANCES.  517 

after  the  commencement  of  performance  j{  the  contract.25  For 
this  latter  reason  it  is  always  well  to  call  the  attention  of  pros- 
pective purchasers  to  the  fact  of  possible  liens  not  shown  of 
record.  A  suggestion  of  this  kind  will  be  found  in  the  re- 
marks on  opinions  of  title. 

§  434.  Continued  —  Priority.  Being  dependent  on  the 
statute  for  their  force  and  extent,  no  general  rule  can  be  as- 
serted in  regard  to  the  priority  of  mechanic's  liens.  They 
usually  take  precedence  of  mortgages  given  after  the  com- 
mencement of  the  work,  but  as  between  mechanics  there  can 
be  no  priority.26  Where,  however,  a  mortgage  or  other  lien 
takes  effect  after  the  commencement  of  one  or  more  mechanic's 
liens,  but  before  the  commencement  of  others,  the  latter  must 
be  postponed  to  the  mortgage  lien.27  As  between  a  lien  upon 
an  equitable  interest  and  one  upon  a  full  legal  title,  the  latter, 
though  subsequent  in  time,  may  be  preferred  to  the  former, 
if  the  holder  thereof  be  an  innocent  holder  without  notice.28 
Mechanics  and  laborers  asserting  a  lien  upon  real  property  for 
their  work,  and  claiming  priority  over  mortgagees  and  others 
who  have  acquired  interests  in  the  property,  must  furnish  strict 
proof  of  all  that  is  essential  to  the  lien,29  but  of  what  these 
essentials  consist,  local  law  must  decide.  In  abstracting  the 
petition,  notice,  or  other  preliminary  measure,  the  examiner 
will  consult  the  statute  and  observe  that  all  its  material  re- 
quirements are  complied  with. 

§  435.  Estate  to  Which  the  Lien  Attaches.  To  render 
the  lien  effective,  and  afford  protection  to  the  artificer  in  every 
possible  case,  it  is  permitted  by  statute  to  attach  to  an  estate 
in  fee,  for  life,  for  years,  or  any  other  estate,  or  any  right  of 
redemption  or  other  interest  which  such  owner  may  have  in 

25  Mehan  v.  Williams,  2  Daly  (N.  Co.  v.  Loomis,  2  Disney  (Ohio), 
Y.),    367;    Dunklee    v.    Crane,    103       544. 

Mass.    470;    Thielmar    v.    Carr,    75  27  Powder   Co.   ■?'.   Loomis,   2   Dis- 

111.  385.  nay  (Ohio),  544;  Williams  V.  Chap- 

26  In  re  TToyt,  3  Biss.  436;  Thiel-        man.   17   111.  423. 

man  v.   Carr,   75   111.    385;    Powder  28  Jones  v.  Lapham,  15  Kans.  540. 

29  Davis  v.  Alvord,  94  U.  S.  545. 


518  ABSTRACTS    OP    TITLE. 

the  land  at  the  time  of  making  the  contract,  and  whatever 
right  or  estate  such  owner  had  at  that  time  may  be  sold  in 
satisfaction  of  the  lien.30  But  the  lien  affects  only  the  title 
of  the  person  contracting,31  and  where  such  person  possesses 
only  an  equity,  the  legal  title  is  not  impaired.32  It  can  not  ex- 
tend to  affect  or  impair  the  right  of  dower ;  33  nor  the  estate  or 
title  of  an  infant;  34  nor  the  title  to  the  fee  or  reversion,  when 
the  contracting  party  is  only  a  tenant  for  life  or  years ;  35  nor 
the  property  of  a  third  party  in  the  temporary  use  of  another  ;36 
nor  the  separate  property  of  a  married  woman,  where  the  con- 
tract is  made  without  her  knowledge  ;37  nor  will  it  extend  against 
the  property  of  the  State.38  The  lien  extends  to  the  property 
of  a  decedent,  and  may  be  enforced  against  the  land  in  pos- 
session of  the  heirs,  but,  it  seems,  can  not  be  made  a  personal 
liability  against  them.39 

§  436.  Limitation  of  Lien,  It  is  difficult  to  formulate 
a  statutory  rule  that  shall  be  of  general  application,  and  par- 
ticularly in  so  technical  a  matter  as  mechanic's  liens.  In 
many  States  they  are  subject  to  constant  legislative  tinkering 
and  continual  change,  with  the  result  that  even  the  judicial 
decisions  of  such  States  are  unreliable  guides. 

30  Kidder  v.  Aholtz,  36  111.  478 ;  expiration  of  the  term :      Knapp  V. 

Donaldson  v.  Holmes,  23   111.   85.  Brown,  45  N.  Y.   207. 

3lHickox   V.    Greenwood,    94    111.  36  Tracy   v.   Rogers,   69    111.    662; 

266.  Thaxter  v.  Williams,  14  Pick.  49. 

32McCarty  v.  Carter,  49  111.  53;  37  Flannery     v.     Rohrmayer,     46 

Hickox  V.   Greenwood,   94   111.   266 ;  Conn.    558.     Otherwise   where    such 

Craig  v.   Swinerton,   15  N.   Y.  Sup.  married       woman       had       personal 

Ct.    144;    Hayes    r.    Fessenden,    106  knowledge    of    the    work,    or    gave 

Mass.  228;  Hallahan  V.  Herbert,  11  directions  concerning  it:     Collins  v. 

Abb.     (N.    Y.)     Pr.     (N.    S.)     326;  Megraw,    47    Mo.    495;    or    the    ma- 

Knapp  v.  Brown,  45  N.  Y.  207.  teriala    were    furnished    at    her    re- 

33  Grove  V.  Cather,  23  111.  634.  quest,  or  had  her  approval:     Green- 

34  McCarthy  v.  Carter,  49  111.  53.  leaf  v.  Bebee,  80  111.  520. 

35  Knapp  v.  Brown,  45  N.  Y.  207;  38  Thomas  v.  Industrial  Univer- 
McCarty  v.  Carter,  49  111.  53;  Fran-  sity,  71  111.  310;  Ripley  v.  Gage  Co., 
cis  V.  Sayles,  101  Mass.  435;  and  3  Neb.  397;  Panola  Co.  Sup.  v.  Gil- 
this     even     though     the     lessee     is  len,  59  Miss.  198. 

bound   to   make   improvements    and  39  McGrew    V.    McCarty,    78    Ind. 

leave  them  on  the  premises  at  the       496. 


LIENS,    CHARGES,    AND    INCUMBRANCES.  519 

!No  lien  is  given  in  any  of  the  States  unless  steps  are  taken 
to  secure  and  perfect  it  within  a  specified  period,  usually  six 
months  or  one  year  from  the  time  of  the  last  charge  for  per- 
formance of  work  or  furnishing  of  materials,  and  in  some 
States  there  is  a  special  limitation  with  respect  to  the  com- 
mencement of  the  work ;  as,  when  the  contract  is  expressed, 
no  lien  is  created  if  the  time  stipulated  for  the  completion  of 
the  work  is  beyond  three  years  from  the  commencement  there- 
of, or  the  time  of  payment  beyond  one  year  from  the  time 
stipulated  for  such  completion.  Where  the  contract  is  implied, 
no  lien  is  given  unless  the  work  shall  have  been  done  or  the 
materials  furnished  within  one  year  from  the  commencement 
of  the  work  or  delivery  of  materials.  The  petition  for  the 
enforcement  of  this  lien  must  state  everything  necessary  to 
show  a  due  compliance  with  the  statute,40  and  such  parts  as 
specifically  relate  to  the  demand ;  the  contract  upon  which  it 
is  founded;  the  dates  of  performance;  the  amount  due;  and 
the  specific  property  which  is  sought  to  be  incumbered,  to- 
gether with  other  material  facts  in  relation  thereto,  must  be 
shown  carefully  and  in  detail,  that  counsel  may  see  from  in- 
spection whether  all  of  the  conditions  necessary  to  create  the 
lien  are  shown  to  exist  and  all  statutory  requisites  have  been 
complied  with.  Unless  the  petition  shows  on  its  face  a  con- 
tract within  the  statute,  no  lien  will  result.41 

§  437.  Assignability.  The  lien  given  by  the  statutes  is, 
in  general,  a  personal  right  given  to  the  mechanic,  material 
man  or  laborer  for  his  own  protection,  and  the  right  can  not 
be  assigned  or  transferred  to  another,42  unless  the  assignment 
is  made  for  the  benefit  of  the  assignor,  and  to  be  held  as  his 

40  Mushlitt  v.  Silverman,  50  N.  Y.  79;    Rowley  v.  James,   31   111.  298; 

.360;    Dinkins    v.    Bowers,    49   Miss.  Valentine  v.  Rawson,  57  Iowa,  179; 

219;    Rothgerbcr    V.    Dupy,    64    111.  and    see    Hammond     v.     Wells,    45 

452;  Davis  V.  Alvord,  94  U.  S.  545;  Mieh.    11;    Treuseh    V.    Shryock,    55 

Valentine  v.  Rawson,  57  Iowa,  179;  Md.  330. 

Conroy   v.   Perry,   26   Kansas,   472;  42  Caldwell   v.    Laminer,    10   Wis. 

Rugg  r.  Hoover,  28  Minn.  404.  332;    Pearsons    v.    Tineker,    36   Me. 

4iMcClurken    v.    Logan,    23    111.  384. 


520  ABSTRACTS    OF    TITLE. 

agent,  so  that  the  Hen  may  be  preserved.43  In  some  States  the 
lien,  while  not  assignable,  will  pass  as  an  incident  to  the  debt.44 
§  438.  Foreclosure  of  Lien.  The  lien  given  by  statute 
is  not  susceptible  of  immediate  enforcement,  but  must  be  prose- 
cuted by  action  of  an  equitable  nature,  and  where  the  lien  is 
finally  satisfied  by  sale  under  a  decree,  all  the  intermediate 
steps  should  be  succinctly  stated  so  as  to  show  a  complete  di- 
vesture  of  title  under  the  statute.  In  many  of  the  States  a 
right  of  redemption  does  not  follow  a  sale  under  a  decree  to 
satisfy  a  mechanic's  lien,  and  as  the  proceedings,  in  this  re- 
spect, are  of  a  summary  nature,  it  is  essential  that  in  all  such 
instances  more  than  ordinary  care  be  taken  in  preparing  the 
synopsis. 

43  Rollin  v.  Cross,  45  N.  Y.  766.       ferent  rule,  but  the  text  states  the 
Local  statutes  may  introduce  a  dif-       general  doctrine. 

44  Brown  v.  Smith,  55  Iowa,  31. 


CHAPTER  XXV. 

US    PENDENS   AND   ATTACHMENT. 

§  439.  Doctrine  of  lis  pendens.  §  443.  Property      drawn      inciden- 

440.  Requisites  of  lis  pendens.  tally  in  question. 

441.  Effect   of    dismissal.  444.  Attachment. 

442.  Notice  lis  pendens.  445.  Formal     requisites     of     at- 

tachments. 

§  439.  Doctrine  of  Lis  Pendens.  It  is  a  rule  in  equity, 
long  established  and  acted  on,  that  a  purchase  of  property 
actually  in  litigation,  or,  as  the  technical  phrase  runs,  a  pur- 
chase pendente  lite,  although  for  a  valuable  consideration  and 
without  any  actual  notice,  affects  the  purchaser  in  the  same 
manner  as  if  he  had  such  notice,  and  he  will  accordingly  be 
bound  by  the  judgment  or  decree  rendered  in  the  suit.  "  This 
rule  is  said  to  rest,"  observes  Earl,  C,  "  upon  the  presumption 
that  every  man  is  attentive  to  what  passes  in  the  courts  of  jus- 
tice of  the  State  or  sovereignty  where  he  resides,  and  to  be 
founded  on  public  policy ;  for  otherwise  alienations  and  trans- 
fers of  title  made  during  the  pendency  of  a  suit  might  defeat 
its  whole  purpose,  and  there  would  be  no  end  to  litigation."  * 
"  A  suit  in  chancery,"  says  Depere,  J.,2  "  duly  prosecuted  in 
good  faith,  and  followed  by  a  decree,  is  constructive  notice  to 
every  person  who  acquires  from  a  defendant  pendente  lite,  an 
interest  in  the  subject-matter  of  the  litigation,  of  the  legal  and 
equitable  rights  of  the  plaintiff  as  charged  in  the  bill  and  es- 
tablished by  the  decree.  This  effect  of  a  successful  litigation 
in  subordinating  the  title  of  a  purchaser  pending  a  litigation, 

i  Leitch  v.  Wells,  48  N.  Y.   585;  V.  McLaren,  4  Cow.   (567;   Miller  v. 
Story's  Eq.  Jur.  §  405;   Jackson  v.  Sherry,  2  Wall.    (U.  S.)    237;  Jack- 
Andrews,  7   Wend.   152;   Hayden  V.  son  v.  Warren,  32  111.  331. 
Bucklin,    9    Paige,    572;    Green    v.  2Creen  V.   Slayter,   4   Johns.   Ch. 
Slater,    4    Johns    Ch.    38;    Hopkins  38. 

521 


522  ABSTRACTS    OF    TITLE. 

to  the  rights  of  the  plaintiff  as  established  in  the  suit,  is  not  de- 
rived from  legislation.  It  is  a  doctrine  of  courts  of  equity  of 
ancient  origin  and  rests  not  upon  the  principles  of  the  court 
with  regard  to  notice,  but  on  the  ground  that  it  is  necessary  to 
the  administration  of  justice  that  the  decision  of  the  court  in 
a  suit  should  be  binding  not  only  on  the  litigant  parties,  but 
also  upon  those  who  acquire  the  title  from  them  during  the 
pendency  of  the  suit.  Such  a  purchaser  need  not  be  made  a 
party,  and  will  be  bound  by  the  decree  which  shall  be  made."  3 

The  doctrine  of  lis  pendens  applies  only  where  a  third  per- 
son attempts  to  intrude  into  a  controversy  by  acquiring  an  in- 
terest in  the  subject-matter  of  the  litigation,  and  the  reason  of 
the  rule  is,  that  if  a  transfer  of  interest  pending  a  suit  were 
to  be  allowed  to  affect  the  proceedings,  there  would  be  no  end 
to  litigation ;  for  as  soon  as  a  new  party  was  brought  in,  he 
might  transfer  to  another,  and  render  it  necessary  to  bring 
that  other  before  the  court,  so  that  a  suit  might  be  intermi- 
nable.4 It  will  be  understood,  however,  that  the  rule,  that  a 
party  purchasing  pendente  lite  is  to  be  regarded  as  a  purchaser 
with  notice,  subject  to  all  the  equities  of  the  person  under  whom 
he  claims,  and  bound  by  the  decree  that  may  be  rendered 
against  the  person  from  whom  he  derives  title,  applies  only 
to  cases  in  which  such  purchaser  derives  title  from  one  of  the 
parties  litigant.  If  he  claims  adversely  to  both  parties  by  title 
paramount,  the  proceedings  to  which  he  is  neither  party  nor 
privy  can  not  bind  him.5 

§  440.  Requisites  of  Lis  Pendens.  In  applying  the 
doctrine  of  lis  pendens  three  facts  are  always  necessary  for  its 
maintenance.  The  property  involved  must  be  of  such  a  char- 
acter as  to  be  subject  to  the  rule;  the  court  must  have  juris- 
diction, both  of  the  parties  and  the  subject-matter  of  the  suit, 

3  Haughwout  v.  Murphy,  7  C.  E.  4  Murry  v.  Lyburn,  2  Johns.  Ch. 

Green    (N.   J.),   531;   2  Story's  Eq.  444. 

Jur.,    §    908;    Murry    r.    Lyburn,   2  5  Allen  V.  Morris,  34  N.  J.  L.  159  j 

Johns.    Ch.    444;    Dickson   v.    Todd,  Scarlett    v    Gorham,    28    111.    319; 

43  111.  405;  Alvvood  V.  Mansfield,  59  Herrington    v.    Herrington,    27    Mo. 

111.  496.  560 ;  Parsons  v.  Hoyt,  44  Iowa,  154. 


LIS   PENDENS   AND  ATTACHMENT.  523 

or  thing  in  controversy;  and  the  thing,  or  property  involved, 
must  be  sufficiently  described.6  That  is,  the  property  must  be 
so  pointed  out  in  the  proceedings  as  to  "warn  the  public  that 
they  intermeddle  at  their  peril ;  and  anyone  reading  the  bill 
must  be  able  to  learn  thereby  what  property  is  intended  to  be 
made  the  subject  of  the  litigation." 

§  441.  Effect  of  Dismissal.  Where  a  suit  at  law  is  dis- 
missed, or  the  plaintiff  suffers  a  non-suit,  or,  if  in  chancery, 
the  bill  is  dismissed  for  want  of  prosecution,  or  for  any  other 
cause  not  reaching  the  merits,  although  in  all  such  cases  a  new 
action  can  be  brought,  such  action  will  not,  it  seems,  affect  a 
purchaser  during  the  pendency  of  the  first  suit ;  and  where  a 
suit  is  dismissed  and  afterward  reinstated,  the  doctrine  of  lis 
pendens  is  not  applicable  to  one  who  purchases  after  the  dis- 
missal and  before  the  revival  of  the  suit.8 

§  442.  Notice  of  Lis  Pendens.  This  common  law  rule 
of  requiring  purchasers,  at  their  peril,  to  take  notice  of  the 
pendency  of  suits  in  courts  of  justice  for  the  recovery  of  the 
property  they  are  about  to  purchase,  although  it  is  really  im- 
possible that  they  should  actually  know  that  such  suits  have 
been  commenced,  has  always  been  considered  a  hard  rule,  and 
is  by  no  means  a  favorite  with  the  courts.9  It  has  always  been 
considered  a  very  harsh  rule  in  its  application  to  bona  fide  pur- 
chasers for  value,  and  has  only  been  tolerated  by  learned 
judges  from  a  supposed  necessity. 

In  the  absence  of  statutory  provisions  to  the  contrary,  the 
bill  or  complaint  is  itself  a  sufficient  notice  to  the  world,  so  as 
to  defeat  the  transfer  of  property  by  the  defendant,  made  sub- 
sequent to  its  filing;  10  but  in  a  large  number  of  the  States, 
particularly  where  the  X.  Y.  code  has  been  followed,  a  material 

BNorris  v.  He,  152  111.  190;  Lea-  9  Hayden    v.    Bucklin,     9    Paige, 

veil  v.  Poore,  91  Ky.  321.  572. 

7  Miller  v.  Sherry,  2  Wall  (U.  S.)  10  Parkinson      v.      Trousdale,      3 

237;    Badger    V.    Daniel,    77    N.    C.  Seam    (111.)    367;    Van/ant    v.   Van- 

251;    Brown  V.    Goodwin,   75   N.   Y.  zant,  23  111.  536;  Davis  v.  Life  Ins. 

409.  Co.,  84  111.  508. 

*  Herrington  v.  McCollum,  73  111 
476. 


524  ABSTRACTS    OF    TITLE. 

change  has  been  made  in  this  rigorous  rule,  which  provides 
that  the  pendency  of  a  suit  shall  not  be  notice  to  a  stranger 
until  a  notice  of  Us  pendens  has  been  filed  in  the  office  of  the 
recorder  of  deeds,  or  clerk's  office,  of  the  county  where  the  land 
is  situated,  and  that  as  to  one  having  no  actual  notice,  he  may, 
in  good  faith,  and  for  a  valuable  consideration,  acquire  a  valid 
title  until  such  notice  is  filed.11  The  Us  pendens  in  this  case 
would  take  effect  as  constructive  notice  in  the  same  manner  as 
attachments. 

"Where  the  suit  is  pending,  and  before  the  bill  or  complaint 
has  been  filed,  the  notice  lis  pendens  will  best  be  shown  by  way 
of  appendix,  the  same  as  attachments,  but,  where  the  abstract 
gives  a  synopsis  of  the  proceedings  then  had,  its  orderly  ar- 
rangement would  be  to  precede  the  synopsis.  After  decree  it 
appears  only  as  an  unimportant  incident  and  is  merely  alluded 
to  in  making  the  chain.  The  form  and  substance  of  the  notice, 
as  well  as  the  validity  and  effect  of  same,  are  matters  of  local 
practice  and  construction,  but  the  following  will  serve  as  an 
example  in  abstracting: 


John  Doe 

agst. 

Richard  Roe. 


Circuit  Court  for  Kenosha  County. 

Notice  Lis  Pendens. 

Dated  March   1,   1SS3. 

Recorded  March  2,  1883. 

Vol.  25,  page  500. 
Recites  thai  an  action  entitled  as  above,  has  been  com- 
menced in  the  above  named  court,  and  is  now  pending  {herein, 
on  complaint  of  above  named  plaintiff  against  above  named 
defendant,  for  [here  set  out  the  object  of  the  action  as  stated; 
as,  "  the  foreclosure  of  a  mortgage,  dated  June  10,  1880,  exe- 
cuted by  said  Richard  Roe  to  said  John  Doe,  and  recorded  in 
volume  10,  page  85,  and  conveying  the  following  described 
lands,  to  wit:"  here  set  out  the  description  as  stated]. 

11  See  N.   Y.  Code,  §  132.     This       enacted  in  all  States  having  a  code 
section  has  been  very  generally  re-       practice. 


LIS    PENDENS    AND    ATTACHMENT.  525 

The  practical  purpose  of  a  notice  of  pendency  of  suit  is  to 
restrain  strangers  from  acquiring  interests  in  the  subject-mat- 
ter of  the  litigation  during  the  progress  of  the  suit.  It  is 
practically  without  effect  as  to  persons  whose  rights  existed 
prior  to  the  filing,  nor  does  it  protect  the  plaintiff  in  the  suit 
against  pre-existing  equities.12 

§  443.  Property  Brawn  Incidentally  in  Question. 
Where  the  rule  of  lis  pendens  in  its  original  form  is  still  re- 
tained, the  authorities  are  generally  unanimous  in  declaring  it 
to  apply  only,  first,  where  the  litigation  is  about  some  specific 
thing  which  must  be  necessarily  affected  by  the  termination  of 
the  suit ;  and,  secondly,  where  the  specific  property  is  pointed 
out  by  the  proceedings  in  such  a  manner  as  to  warn  the  whole 
world  that  they  meddle  with  it  at  their  own  peril.13 

Under  the  application  of  these  principles,  it  has  been  held 
by  an  almost  invariable  uniformity  in  the  decisions  on  the  sub- 
ject, that  the  rule  does  not  apply  to  proceedings  in  suits  which 
are  in  personam.1 4  But  the  principle  involved  may  be  in- 
voked in  those  suits  which,  while  in  form  in  personam  are,  in 
fact,  suits  in  rem.  Thus,  the  question  arises  frequently  in  suits 
for  divorce  in  which  the  wife  seeks  to  have  a  certain  subsist- 
ence secured  to  her  out  of  the  estate  of  her  husband,  and  while 
the  general  prayer  is  not  sufficient  to  subject  the  property  of 
the  husband  to  the  application  of  the  rule,  it  yet  seems  that 
where  specific  property  is  incidentally  drawn  in  question,  either 
by  recitals  of  the  bill  or  orders  of  the  court,  such  a  lis  pendens 
is  created  as  will  bind  a  purchaser  pendente  lite.15 

§  444.  Attachment.  The  office  of  an  attachment  is  sim- 
ply to  secure  to  a  creditor  the  property  which  a  debtor  has  at 
the  time  the  writ  is  levied  so  that  it  may  be  seized  and  sold  in 

12  Baker  v.  Bartlett,  18  Mont.  v.  Sherry,  2  Wall.  (U.  S.)  237; 
440;    Warnock   v.   Harlow,    96   Cal.       Norris  V.  He,  152  111.   100. 

298;    Parks   v.   Jackson,    11    Wend.  14  1  Story  Eq.  Jr.,  §  196,  Almond 

(N.  Y.)    442.  v.  Almond,  4  Rand.  662;  Brightman 

1 3  Freeman  on  Judg't,  106;  Green      v.  Brightman,  1   R.  I.  112. 

v.  Slayter,  4  Johns.  Ch.  38;  Miller  15  Isler  r.  Brown,  66   NT.  C.  556; 

Daniel  v.  Hodges,  87  N.  C.  95. 


526  ABSTRACTS    OF    TITLE. 

satisfaction  of  the  debt,  after  judgment  and  execution  shall  have 
been  obtained.16  It  creates  no  estate  in  favor  of  the  person  at 
whose  instance  the  writ  issued,17  and  does  not  change  or  alter 
the  estate  of  the  defendant  debtor.18  It  places  no  impediment 
on  the  power  of  alienation,19  nor  will  it  affect  prior  bona  fide 
liens  that  may  have  been  placed  upon  the  land.20  It  does  cre- 
ate, however,  a  lien,  which  nothing  but  the  dissolution  of  the 
attachment  can  destroy,21  and  every  person  into  whose  hands 
the  property  may  subsequently  come,  takes  it  charged  with 
this  lien,  and  subject  to  all  the  rights  of  the  attaching  cred- 
itor to  have  the  property  seized  and  sold  on  execution  for  the 
satisfaction  of  his  debt.22  An  attachment  can  operate  only 
upon  the  right  of  the  debtor  existing  at  the  time  the  writ  was 
levied  and  no  interest  subsequently  acquired  by  the  debtor 
can  in  any  manner  be  affected  by  the  return  thereof,  provided 
he  was  without  title  at  the  time  the  attachment  was  made.23 
Being  in  derogation  of  the  common  law,  an  attachment  is  de- 
pendent entirely  upon  the  statute  for  its  validity  and  effect, 
and  must  conform  to  statutory  requirements  in  all  essential 
particulars.24 

§  445.  Formal  Requisites  of  Attachment.  Though 
the  remedy  by  attachment  is  purely  statutory,  and  while  there 
exists  in  many  particulars  a  wide  dissimilarity  between  the 
attachment  acts  of  the  several  States,  there  is  yet  a  marked 
uniformity  in  the  general  steps  that  must  be  pursued  to  render 
it  available,  and  its  effect  in  all  the  States  is  nearly  identical. 
The  suit  is  instituted  by  the  filing  of  a  statutory  affidavit, 
whereupon  a  writ  is  issued.     This  is  followed  by  a  levy,  which, 

1G  Crocker  v.  Pierce,  31  Me.   177.  21  Smith   v.   Bradstreet,    16   Pick. 

lTGoddard   v.    Perkins,    9    N.    H.  264;     Hannahs    v.    Felt,    15    Iowa, 

488;  Foulks  V.  Pegg,  6  Nev.  136.  141. 

is  Bigelow  v.  Wilson,  1  Pick.  485;  22  Randolph    r.    Carlton,    8    Ala. 

Blake  V.  Shaw,   7  Mass.   505;   Mer-  606. 

rick  v.  Hutt,   15  Ark.  331.  23  Crocker   v.  Pierce,  31  Me.   177. 

19  Warner  v.   Everett,  7  B.  Mon.  24  May  v.  Baker,  15  111.  89;  Hay- 
(Ky.)    262.  wood  v.  Collins,  60  111.  328. 

20  Husbands    v.    Jones,    9    Bush 
(Ky.)    218. 


LIS   PENDENS   AND    ATTACHMENT.  527 

in  the  case  of  land,  must,  of  necessity,  be  a  paper  levy.  The 
levy  is  initiated  by  an  endorsement  of  the  fact  upon  the  writ, 
and  perfected  by  the  return  thereof,  while  notice  is  afforded  by 
the  filing  of  a  certificate  of  levy  with  the  recorder  of  deeds. 
Until  such  certificate  has  been  filed  the  attachment  does  not 
become  effective  as  to  third  persons  without  notice.25 

In  preparing  the  abstract  the  certificate  of  levy  would  prob- 
ably be  all  that  is  required  to  furnish  a  notice  lis  pendens,  but 
in  practice  it  is  customary  also  to  show  a  brief  synopsis  of  the 
court  proceedings,  and  this  is  the  better  method,  as  counsel 
not  infrequently  desires  same  as  a  reference  or  index,  as  well 
as  to  see  that  the  formal  steps  have  been  properly  taken. 
Neither  in  this,  nor  in  other  cases  where  court  proceedings  are 
shown,  is  it  customary  to  give  more  than  brief  references,  or 
statements  of  steps  taken,  and  where  greater  detail  is  desired 
it  is  obtained  by  a  transcript  of  the  record  and  papers,  or  by 
personal  inspection  of  the  files.  An  abstract  entry  of  an  at- 
tachment showing  the  court  proceedings  and  sheriff's  certificate 
of  levy  is  appended  and  will  illustrate  the  method  just  de- 
scribed : 

Liens  and  Lis  Pendens.26 


William  R.  Smith 

vs. 

John   Savage. 


In  Superior  Court  of  Cook  County,  Ills. 
Case  No.  89,928. 
Attachment. 

Affidavit   and.   bond   filed,   and   ivrit 
issued  May  23,  1881. 
Returned  levied  May  23,  1881,  upon  all  the  right,  title  and 
interest  of  above-named  defendant  in  and  to  the  following  de- 
scribed real  estate,   to   wit:      [Here   set   out  the   property   as 
returned.] 

No  personal  service.     Notice  by  publication.    (Cause  pend- 
ing.) 

25f5roves  v.  Webber,   72  111.  606.       which  matters  of  the  kind   now   un- 
20  This    is    the    sub-head     under        der  consideration   should  be  shown. 


528  ABSTRACTS    OF    TITLE. 


John  Savage 
adv. 


Certificate  of  levy. 
Recorded  May  26,  1881. 


William  R.  Smith.  J      Book  500,  page  210. 

0.  L.  Mann,  Sheriff  of  Cook  County,  III.  {by  Deputy),  cer- 
tifies, that  by  virtue  of  a  writ  of  attachment  numbered  18,928, 
to  him  directed  from  the  Superior  Court  of  Cook  County,  III., 
in  favor  of  William  R.  Smith,  plaintiff,  and  against  John 
Savage,  defendant,  dated  May  23,  1881,  he  did  on  "this" 
23d  day  of  May,  1881,  levy  on  the  right,  title  and  interest 
of  said  defendant  in  and  to  the  following  described  real  estate, 
to  wit:     [Here  follows  the  description.] 

Where  the  action  is  duly  prosecuted  and  is  followed  by 
judgment,  execution  and  sale,  the  attachment  may  be  indicated 
only  by  references  to  the  issue,  levy  and  return  of  the  writ, 
and  filing  of  certificate,  the  validity  of  the  sale  depending  upon 
the  judgment  and  execution ;  but  where,  as  in  the  above  exam- 
ple, no  personal  service  has  been  had,  and  the  notice  is  con- 
structive merely,  the  notice,  proof  of  publication,  and  other 
acts  necessary  to  confer  jurisdiction  must  appear.  The  only 
object  of  the  entries  as  above  is  to  show  the  fact  of  a  lien. 
Where  the  attachment  has  been  dissolved  Or  the  action  discon- 
tinued, a  continuation  of  the  abstract  should  disclose  those 
facts  so  as  to  show  the  removal  of  the  lien. 


CHAPTER  XSVI. 


JUDGMENTS   AND  DECREES. 


§  446.     Defined  and  distinguished.         §  460.     Decrees,   classified   and   dis- 


447. 

Operation     and     effect     of 

tinguished. 

judgments. 

461. 

Operation  and  effect  of  de- 

448. 

Lien  of  judgments. 

crees. 

449. 

Territorial  extent  of  lien. 

462. 

Decrees    rendered    on    con- 

450. 

Duration  of  lien. 

structive  notice. 

451. 

Priority. 

463. 

Lien   of  decrees. 

452. 

After-acquired  property. 

464. 

Formal     requisites     of     de- 

453. 

Docketing. 

crees. 

454. 

Formal   requisites   of   judg- 

465. 

Abstract  of  decrees. 

ments. 

466. 

Errors  and  defects. 

455. 

Antecedent   proceedings. 

467. 

Continued  —  Middle  name. 

456. 

Judgments    against    a    de- 

468. 

Continued  —  Initials. 

ceased  person. 

469. 

Operation  and  effect  of  pro- 

457. 

Judgments  against  infants. 

bate    decrees. 

458. 

Exemptions. 

470. 

Foreign  judgments  and  de- 

459. 

Satisfaction   and   discharge. 

crees. 

§  446.  Judgments  and  Decrees  —  Defined  and  Distin- 
guished. Any  distinction  between  judgments  and  decrees  is 
rather  fanciful  than  real,  since  all  adjudications  by  a  court  of 
competent  jurisdiction  are  essentially  judgments,  yet  in  prac- 
tice the  term  "  decree  "  is  used  to  distinguish  the  determina- 
tions and  orders  of  a  court  of  equity,  while  the  term  judgment 
is  generally  employed  to  denote  the  adjudications  of  a  law 
tribunal.  Judgments  are  usually  for  damages,  and  provide 
for  a  definite  recovery  in  money ;  decrees  contemplate  some 
method  of  affirmative  relief  or  operate  in  some  specific  way  in 
answer  to  the  prayer  of  the  complaint. 

In  examinations  of  title,  judgments  in  personam  are  im- 
portant only  as  they  serve  to  incumber  the  land  of  the  judg- 
ment debtor  with  a  statutory  lien,  and  when  the  lien  has  been 
extinguished,  either  by  laose  of  time  or  satisfaction  of  the 
34  529 


530  ABSTRACTS    OF    TITLE. 

judgment,  they  become  of  no  importance  whatever  and  are 
wholly  disregarded.  Decrees,  on  the  other  hand,  operating  di- 
rectly upon  the  land,  are  of  controlling  and  continuing  efficacy. 
They  become  a  part  of  the  general  course  of  title,  and  through 
whatever  mutations  it  may  afterwards  pass  they  always  remain 
essential  links  of  the  chain.1 

§  447.  Operation  and  Effect  of  Judgments.  It  is  a  gen- 
eral rule,  that  a  judgment  by  a  court  having  jurisdiction  over 
the  parties  and  the  subject-matter,  rendered  directly  upon  the 
point  in  question,  is  conclusive  as  between  such  parties  and  in 
relation  to  such  point,2  and  there  is  no  essential  difference 
between  the  effect  of  a  decree  in  equity,  and  that  of  a  judgment 
at  law  to  bar  a  subsequent  suit.3  But  such  adjudication  is  con- 
clusive only  for  the  purposes  for  which  it  was  made,  and  does 
not  conclude  matters  collaterally  introduced  or  recited.4 

It  is,  however,  in  regard  to  their  effect  on  the  lands  of  the 
judgment  debtor,  by  reason  of  the  lien  given  by  the  statute, 
that  they  become  at  all  important  in  examinations  of  title;  and 
in  pursuing  such  examinations  whatever  other  operation  or 
effect  they  may  have  is  comparatively  of  no  significance.  This, 
of  course,  has  reference  only  to  judgments  in  personam,  and 
not  to  judgments  in  legal  actions  which  operate  in  rem.5 

§  448.     Lien  of  Judgments.     Judgment  liens  on  real  es- 

l  The  Codes  of  Procedure,  adopted  term  is  used  and  in  the  sense  above 

in  many  of  the  States,  do  not  recog-  indicated. 

nize    the    distinction    made    in    the  2  Geary  v.  Simmons,  39  Cal.  224 ; 

above      paragraph.        Under      these  Spencer  v.  Dearth,  43  Vt.  98;  Gates 

codes  all  final  determinations  of  the  V.  Preston,  41  N.  Y.  113;  Finney  V. 

rights  of  the  parties   in  the  action  Boyd,  26  Wis.  366;  •Russell  V.  Place, 

are   classed   as   judgments,   without  94   U.   S.   606. 

reference  to   the   subject-matter,   or  3  Foster  v.  The  Richard   Busteed, 

the  character  of  the  relief  granted.  100  Mass.  409. 

In  these  codes  the  word  "  decree  "  is  4  Fish  v.  Lightner,  44  Mo.  268 ; 
not  used,  but  the  term  "judgment"  Land  v.  Keirn,  52  Miss.  341;  East- 
is  substituted  in  its  place,  as  regards  man  v.  Porter,  14  Wis.  39. 
actions  both  of  an  equitable  and  a  5  As  judgments  in  ejectment, 
legal  nature.  In  practice,  however,  which,  while  they  may  purport  to 
both    by    the    bench    and    bar,    the  confer  only  the  right  of  possession 

are  yet  conclusive  as  to  title. 


JUDGMENTS    AHD    DECREES.  55tt 

tate  are  wholly  statutory.  The  lien  attaches  and  becomes  ef- 
fective only  by  force  of  the  statute,  and  only  in  the  mode,  at 
the  time,  and  upon  the  conditions  and  limitations  imposed  by 
it.  It  receives  no  vigor  or  even  aid  from  the  common  law,  to 
which  it  was  unknown.  At  common  law,  the  judgment  creditor 
could  have  satisfaction  only  out  of  the  goods  and  chattels  and 
present  profits  of  the  lands  of  the  debtor,  but  under  the  statute 
it  is  the  policy  of  the  law  to  make  all  of  a  man's  property,  real 
as  well  as  personal,  liable  for  the  payment  of  his  debts,  both 
during  his  life  and  after  his  death,  except  in  cases  of  specified 
statutory  exemptions ;  and  a  conveyance  of  land  by  a  judgment 
debtor,  for  a  valuable  consideration,  after  a  judgment  has  be- 
come a  lien  thereon,  and  pending  an  appeal,  will  not  defeat  the 
lien  of  the  judgment.  In  such  case  the  grantee  takes  title  sub- 
ject to  the  lien,  and  a  sale  and  deed  made  on  execution  under 
such  judgment  will  pass  title,  unaffected  by  the  conveyance.6 

Where  the  abstract  shows  a  judgment  duly  rendered  against 
any  of  the  parties  in  interest  from  which  an  appeal  has  been 
taken,  notwithstanding  that  a  bond  has  been  given,  such  judg- 
ment should  be  noted  as  a  defect  of  title.  The  appeal  does 
not  vacate  the  judgment  nor  destroy  its  lien.  Its  only  effect 
is  to  operate  as  a  stay  of  proceedings  for  enforcement  during 
the  pendency  of  the  appeal,7  and  in  case  the  judgment  is  af- 
firmed it  has  practically  the  same  force  and  effect  as  though  no 
appeal  had  been  taken.s 

In  general,  personal  property  must  first  be  taken  upon  legal 
process,  and  it  is  a  universal  rule  that  this  is  the  primary  fund 
for  payment  of  debts,  after  the  death  of  the  debtor.9 

A  judgment  lien  on  land  constitutes  no  property  in  the  land 
itself,10  for  the  lien  is  but  an  incident,  not  the  object  of  the 
judgment,  and  the  judgment  creditor  is  not  entitled  to  any 
advantage  which  his   debtor  had  not.11      Such  lien   is  subject 

6  Dobbins  V  Wilson,  107  111.  17.  io  School     Dist.     v.     Werner.     4:: 

7  0akes  v.  Williams,  107  111.  154.  Iowa,  643;  Conrad  v.  Ins.  Co.,  1  Tet. 

8  Walker  v.  Doanc,  108  111.  236.  378. 

9  Mitchell  v.  Wood,  47  Miss.  231 ;  1 1  Reed's  Appeal,  13  Penn.  St. 
Whitney  r.  Whitney.  14  Mass.  88.  475. 


532  ABSTRACTS    OF    TITLE. 

to  all  equities  which  existed  against  the  land,  in  favor  of  third 
persons,  at  the  time  of  the  recovery  of  the  judgment,  and  with 
a  failure  or  extinguishment  of  the  debtor's  title  the  lien  en- 
tirely ceases  and  is  lost.12 

The  statute  usually  provides  that  the  judgment  shall  be  a 
lien  on  the  "  real  estate "  or  "  lands  and  tenements  "  of  the 
debtor  for  a  specified  period,  but  is  sometimes  coupled  with 
conditions  relative  to  the  issuance  of  execution,  etc.,  the  ob- 
servance of  which  is  necessary  to  perfect  the  lien.  The  terms 
"  real  estate  "  or  "  lands  and  tenements,"  as  used  in  this  con- 
nection, are  of  very  broad  signification,  and  have  been  held  to 
include  remainders  and  reversions  vested  under  legal  titles, 
as  well  as  legal  estates  in  possession,13  but  do  not  embrace 
mere  equities  14  or  inchoate  rights;  nor  does  a  judgment  against 
a  firm  create  a  lien  upon  the  individual  property  of  the  part- 
ners,15 although  if  they  are  all  made  defendants  they  will  all 
be  severally  liable,  and  all  the  incidents  of  a  judgment  will 
attach  to  their  several  estates.16 

§  4A9.  Territorial  Extent  of  Lieu.  The  lien  of  a 
judgment  rendered  by  a  State  court  attaches  only  to  the  land 
of  the  debtor  situate  within  the  county  for  which  the  court  is 
held,  or  in  which  a  transcript  has  been  regularly  docketed, 
and  a  certificate  covering  only  the  county  courts  of  record  is 
all  that  is  necessary  to  fully  apprise  intending  purchasers  of 
the  condition  of  the  title  so  far  as  same  may  be  affected  by 
the  adjudications  of  the  State  courts.17 

12  Hydraulic  Co  V.  Loughry.  72  Powell  V.  Knox,  16  Ala.  364.  This 
Ind.  562;  McBane  v.  Wilson,  12  Re-  doctrine,  however,  is  not  universal, 
porter,  325;  Frazer  v.  Thatcher,  49  and  though  the  prevailing  one  yet 
Tex.  26.  A  judgment  recovered  in  several  of  the  States  it  is  denied: 
against  a  person  after  he  is  ad-  see  Lathrop  v.  Brown,  23.  Iowa,  40; 
judged  bankrupt,  will  not  be  lien  Jackson  v.  Williams,  10  Ohio,  69; 
upon  the  lands  of  the  bankrupt:  Wallace  V.  Monroe,  22  111.  App. 
Burgett  v.  Paxton,  99  111.  288.  602. 

13  Lawrence  v.  Belger,  31  Ohio  15  Stadler  v.  Allen,  44  Iowa,  198. 
St.  175;  Ducker  r.  Burnham,  146  111.  16  Starry  v.  Johnson,  32  Ind.  438. 
9.     .  17  Baker  V.  Chandler,  51   Ind.  85. 

ii  Dixon  v.  Dixon,  81  N.  C.  323;       The  lien  of  a  judgment  of  the  Su- 


JUDGMENTS    AND    DECREES.  533 

It  was  long  held  that  judgments  rendered  in  the  Federal 
courts  have  the  same  lien  on  the  lands  of  the  debtor  within  the 
district  that  is  given  to  the  judgments  of  the  State  courts 
within  the  limits  of  their  respective  territorial  jurisdictions,18 
and  therefore,  in  the  compilation  of  abstracts  it  was  quite  as 
essential  that  the  Federal  courts  of  the  district  should  be  cov- 
ered bj  the  search,  as  the  county  courts.  But  this  rule  has 
been  greatly  modified  of  late  years.  In  the  year  1888  by  an 
act  of  Congress  it  was  provided  that  judgments  of  Federal 
courts  shall  be  liens  "  to  the  same  extent  and  under  the  same 
conditions  only  as  if  such  judgments  and  decrees  had  been 
rendered  by  a  court  of  general  jurisdiction  of  such  State," 
and  this  act,  it  is  contended,  places  judgments  of  the  Federal 
courts  on  the  same  basis  as  judgments  of  the  State  courts 
with  respect  to  their  effect  as  liens.  Accordingly  it  has  been 
held  that  where  a  State  statute  restricts  the  territorial  lien  of 
a  judgment  to  the  county  in  which  it  was  rendered,  and  to 
counties  in  which  a  transcript  is  filed,  such  statute,  since  the 
passage  of  the  law  of  1888,  prevents  the  lien  of  a  Federal 
judgment  from  becoming  operative  throughout  the  entire  district 
and  subjects  it  to  the  restrictions  of  the  State  law.19 

A  judgment,  whether  of  State  or  Federal  courts,  is  not  a 
specific  lien  upon  any  particular  land  of  the  judgment  debtor, 
but  extends  generally  upon  all  his  proprietary  holdings,  sub- 
ject to  prior  liens,  legal  or  equitable.20    • 

preme  Court  is  co-extensive  with  the  tent  of  the  lien,  is  declared  in  Dart- 
territorial  limits  of  the  State:  Dur-  mouth  Sav.  Bank  v.  Bates,  44  Fed. 
ham  v.  Heaton,  28  111.  264.  Rep.    546,   and   other   cases   sustain 

18  Sellers  v.  Corwin,  5  Ohio,  398;  the  doctrine.  But  it  has  always 
Shrew  v.  Jones,  2  McLean,  78;  Mas-  been  the  policy  of  Congress  to  con- 
singill  v.  Downs,  7  How.  760;  form  such  liens,  as  well  as  the  pro- 
Brown  v.  Pierce,  7  Wall,  205;  cesses  of  the  Federal  courts,  to 
Branch  v.  Lowrey,  31  Tex.  96.  those  of  the  State  courts. 

19  See,  Blair  v.  Ostrander,  109  20  Rodgers  v.  Bonner,  45  N.  Y. 
Iowa,  204;  47  L.  R.  A.  469.  The  379.  Judgment  liens  being  purely 
constitutional  power  of  Congress  to  legal,  should  they  fail  at  law,  can 
make  a  judgment  of  a  Federal  court  not  be  extended  in  equity:  Douglass 
a  lien  on  tbe  debtor's  property,  and  V.  Houston,  6  Hammond  (Ohio), 
fix  the  duration  and  territorial  ex-  162. 


534  ABSTRACTS    OF    TITLE. 

§  450.  Duration  of  Lien.  The  lien  of  judgments  upon 
real  estate  is  regulated  by  statute,  and  the  general  rule  is,  that 
the  lien  continues  for  ten  years  21  from  the  rendition  of  the 
judgment,  and  no  longer,  except  that  in  a  few  enumerated 
cases  where  a  party  is  restrained  from  enforcing  his  judgment 
by  appeal,  injunction,  etc.,  the  time  so  consumed  is  excluded 
from  the  computation.  A  purchaser  from  a  judgment  defend- 
ant, after  the  expiration  of  ten  years  from  the  rendition  of  the 
judgment,  or  such  other  period  of  limitation  as  the  statute 
may  prescribe,  takes  the  land  discharged  from  the  lien  of 
same,  unless  it  has  been  preserved  by  some  of  the  exceptions 
contained  in  the  statute.22  Ordinarily  a  search  for  judgments 
covering  a  period  of  ten  years  is  sufficient,  and  it  is  not  custom- 
ary for  the  examiner  to  certify  judgments  for  a  longer  time. 
Unless  specially  excepted,  neither  injunction,  appeal,  nor  other 
cause  will  have  the  effect  to  prolong  the  lien  beyond  the  statu- 
tory period,  as  against  a  purchaser  from  the  judgment  debtor.23 

There  is  some  uncertainty  with  respect  to  the  territorial  ex- 
tent of  judgments  rendered  in  the  United  States  courts.  Prior 
to  the  act  of  1888  it  was  the  invariable  rule  that  a  judgment 
rendered  in  the  Federal  courts  has  the  same  lien  on  the  lands 
of  the  debtor  within  the  district  that  is  given  to  a  judgment 

21  In  some  States  for  a  shorter  which  the  lien  depends,  the  lien  is 
period.  Thus,  in  Illinois  for  only  destroyed  by  the  repeal :  Ray  v. 
seven  years.  Thompson,  43  Ala.  434.     A  familiar 

22  Applegate  v.  Edwards,  45  Ind.  form  of  statutory  expression  is,  that 
329;  Gridley  v.  Watson,  53  111.  186.  the  judgment  shall  cease  to  be  a 
The  limitation  period  in  some  States  lien  or  incumbrance  on  any  real  es- 
is  less  than  ten  years ;  thus,  in  Illi-  tate,  as  against  purchasers  in  good 
nois,  the  time  is  seven  years.  In  faith,  subsequent  incumbrancers, 
most  instances,  however,  the  period  etc.,  but  within  the  meaning  of  such 
is  fixed  at  ten  years,  as  stated  in  an  act,  all  purchasers  are  to  be  con- 
the  text.  sidered  as  purchasers  in  good  faith, 

23  Tucker  v.  Shade,  25  Ohio  St.  except  those  who  purchase  with  an 
."loo.  The  lien  of  a  judgment  is  a  actual  fraudulent  intent,  and  mere 
qualified  right,  given  by  law,  and  notice  of  the  prior  judgment,  either 
'•:(>•  be  taken  away  by  law:  Hous-  actual  or  constructive,  will  not  ren- 
ton  ?'.  Houston,  67  Ind.  276,  and  der  the  purchase  mala  fide:  Little 
when    the     law     is    repealed     upon  V.  Harvey,  9  Wend.  157. 


JUDGMENTS    AND    DECREES.  5oO 

of  a  State  court  within  the  limits  of  its  territorial  jurisdiction;24 
but,  however  this  may  be,  there  is  no  uncertainty  with  respect 
to  its  termination  for  it  is  provided  that  "  judgments  and  de- 
crees rendered  in  a  United  States  circuit  or  district  court, 
within  any  State,  shall  cease  to  be  liens  on  real  estate  or  chat- 
tels real,  in  the  same  manner  and  at  like  periods  as  judgments 
and  decrees  of  the  courts  of  such  State  cease,  by  law,  to  be  liens 
thereon."  25 

§  451.  Priority.  It  has  been  held,  that  neither  judg- 
ment creditors  nor  purchasers  at  sheriff's  sale,  deriving  rights 
by  operation  of  law,  are  regarded  as  purchasers  for  a  valuable 
consideration,  but  as  mere  volunteers  in  contemplation  of  a 
court  of  equity,26  and  that  the  general  lien  of  a  judgment 
creditor  upon  the  lands  of  his  debtor  is  subject  to  all  equities 
which  existed  against  such  lands,  in  favor  of  third  persons,  at 
the  time  of  the  recovery  of  the  judgment.27  Generally  this  is 
true,  yet,  under  the  statute,  as  it  exists  in  a  majority  of  the 
States,  the  lien  of  a  docketed  judgment,  lawfully  obtained  at 
the  suit  of  any  party  against  the  person  in  whose  name  the 
title  to  such  land  appears  of  record,  will  have  priority  over  an 
unrecorded  mortgage,  or  deed.28  These  statutes  protect  judg- 
ment creditors  as  bona  fide  purchasers  for  a  valuable  considera- 
tion whose  liens  arise  while  the  record  title  appears  in  the 
judgment  debtor,  although  in  fact  he  may  have  conveyed  the 
property. 

As  between  judgment  creditors  there  is  no  general  rule  re- 
specting priority,  the  matter  being  usually  regulated  by  statute. 
Judgments  rendered  at  the  same  term  of  court,  or  on  the  same 
day  in  vacation,  ordinarily  have  no  priority  over  each  other, 
but  this  is  by  no  means  a  uniform  observance,  and  it  has  been 

24  Sellers  v.  Corwin,  5  Ohio,  39S ;  27  Hydraulic  Co.  v.  Lougliry,  72 
Shrew  r.  Jones,  2  McLean,  78;  Mas-  Ind.  5G2;  Apperson  v.  Burgett,  33 
singill  v.  Downs,  7  How.  7G0.  Ark.  328. 

25  Tj.  S.  Rev.  Stat.,  §  967;  see  28  Lash  v.  Hardiek,  5  Dillon,  605 ; 
Meyers  V.  Tyson,  13  Blatchf.  212.  Wood  V.  Young,  38  Iowa,  102;  Miss. 

20  Davis  v.  Hamilton,  50  Miss.  Valley  Co.  v.  R.  R.  Co.,  58  Miss. 
312.  846;  Guiteau  v.  Wisely,  47  111.  433. 


536  ABSTRACTS    OF    TITLE. 

held,  that  when  several  judgments  are  rendered  at  the  same 
term  of  court,  but  on  different  days,  such  judgments  do  not  re- 
late to  the  first  day  of  the  term  aud  become  effective  as  of 
that  date,  but  are  liens  on  the  real  estate  of  the  judgment 
debtor  only  from  the  dates  at  which  they  are  respectively 
entered  or  docketed,  and  take  priority  accordingly.29  As  a 
rule  the  law  does  not  regard  fractions  of  a  day  and  all  acts 
done  upon  the  same  day  are  to  be  taken  as  done  at  the  same  time. 
Yet,  where  it  is  necessary  to  justice,  and  can  be  done,  this 
rule  will  be  made  to  yield  to  the  exigencies  of  the  particular 
case.  Thus,  where  the  hour  itself  may  become  material;  as 
where  a  lien  attaches  upon  the  doing  of  an  act,  or  in  behalf 
of  the  party  who  asserts  it  or  seeks  to  fasten  same  on  property, 
the  fraction  of  a  day  may  be  considered  in  determining  a  ques- 
tion of  priority.  In  the  matter  of  apparently  concurrent  judg- 
ments this  latter  doctrine  has  frequently  been  applied  and  the 
preference  given  to  the  one  first  entered.30  As  before  remarked, 
however,  the  application  of  this  doctrine  is  largely  a  matter  of 
statutory  direction  and  construction. 

When  lands  are  incumbered  simultaneous  with  their  acqui- 
sition, the  incumbrance  being  to  secure  the  unpaid  purchase 
money,  the  authorities  are  uniform  in  declaring  that  such  in- 
cumbrance will  take  priority  over  the  lien  of  a  judgment  al- 
ready docketed.31  "  The  reason  for  this  is  readily  found,"  ob- 
serves Freeman,  "  when  we  remember  that  it  is  a  universally 
recognized  principle  of  law  that  no  judgment  lien  can  be  a 
charge  upon  any  greater  interest  than  the  defendant  owns.  A 
purchaser  who  has  paid  only  a  portion  of  the  sum  contracted 
to  be  paid,  has  no  title  which  is  not  liable  to  be  subjected  to 
the  lien  of  the  vendor  for  unpaid  purchase  money.  A  judg- 
ment against  such  a  vendee  must,  therefore,  be  subordinate  as 
a  lien  to  that  held  by  the  vendor;  and  for  this  purpose,  it  is 
perfectly  immaterial  whether  the  claim  is  put   in  the   shape 

29  Anderson  v.  Tuck,  33  Md.  225.       311;   Murfree   v.  Carmack,   4  Yerg. 

30  Mitchell      V.      Schoonover,      16        (Tenn.)  270. 

Oreg.   211;   Coal   Co.   v.   Barber,   47  31  Curtis    v.    Root,    20    111.    53; 

Kan.  29;  Lang  v.  Phillips,  27  Ala.        Roane  V.  Baker,  120  111.  308. 


JUDGMENTS    AISTD    DECREES.  537 

of  a  vendor's  lien,  or  of  a  mortgage  to  secure  the  payment  of 
purchase  money."  32 

§  452.  After-acquired  Property.  It  is  a  well  estab- 
lished doctrine,  that  the  lien  of  a  judgment  attaches  to  and 
binds  land,  the  title  to  which  is  subsequently  acquired  by  the 
judgment  debtor,  and,  where  the  statute  is  silent  on  the  sub- 
ject, this  rule  has  been  generally  received  and  acted  upon 
throughout  the  United  States.33  The  lien  does  not  take  effect 
by  relation  as  of  the  date  of  the  judgment,  but  attaches  to  such 
after-acquired  property  only  from  the  time  it  is  acquired  by 
the  judgment  debtor,  and  the  liens  of  all  judgments  in  exist- 
ence when  the  debtor  obtains  the  property  attach  alike.34 

§  453.  Docketing.  The  general  rule  seems  to  be,  that 
before  a  judgment  can  become  a  lien  it  must  be  regularly 
docketed.  That  is,  be  entered  of  record  in  such  books  as  the 
statute  requires  to  be  kept.  This,  it  is  said,  is  the  only  proof 
of  a  judgment  and  hence  essential  to  its  validity.35  In  some 
instances  it  has  even  been  held  that  the  record  is  not  complete 
until  an  entry  has  been  made  in  the  index,36  and  that  an 
omission  in  this  particular  is  fatal  to  the  lien.  On  the  other 
hand,  some  of  the  cases  hold  that  docketing  is  not  an  essential 
of  the  efficacy  of  a  judgment  nor  a  condition  precedent  to 
issuing  execution  thereon,  but  is  a  necessary  condition  for  the 
purposes  of  a  lien.37  Others  have  gone  so  far  as  to  declare 
that  the  lien  of  a  judgment  is  not  lost  by  the  failure  of  a 
clerk  to  enter  the  rendition  in  the  docket,  although  the  land 
affected  by  such  judgment  lien  may  have  passed  into  the  hands 
of  a  bona  fide  holder  without  notice.38 

32  See  contra,  Ryner  v.  Frank,  533.  But  see,  Durant  v.  Comegys, 
105  111.  326.  2  Idaho,  809. 

33  Thulenieyer  v.  Jones,  37  Tex.  36  J^tna  Ins.  Co.  v.  Hesser,  77 
560.  Iowa,   381;    Crouse  V.  Murphy,   140 

34Coyce  V.  Stovall,  50  Miss.  396;  Pa.  St.  335. 

Babcock    v.    Jones,     15    Kan.    296;  37  Bernhardt  V.  Brown,  122  N.  C. 

Wales  v.  Bogue,  31  111.  464.  587. 

35  Callanan  r.  Votruba,  104  Iowa,  38  Johnson  v.  Schloesser,  146  Ind. 

672;  Davis  v.  Steeps,  97  Wis.  472;  509. 
Rockwood   v.    Davenport,    37   Minn. 


538  ABSTEACTS    OF    TITLE. 

It  will  be  seen,  therefore,  that  the  authorities  are  not  in  ac- 
cord upon  this  subject,  and  that  local  law  and  usage  is  the 
only  safe  guide. 

§  454.  Formal  Requisites  of  Judgments.  ]STo  set  form 
of  words  is  necessary  to  be  employed  in  rendering  judgments,39 
provided  they  are  certain  and  find  the  sum  for  which  they  are 
rendered,  but  failing  in  this,  they  are  fatally  defective.40 
The  certainty  required  has  reference  both  to  the  parties  and 
the  recovery,  for  the  judgment  is  regarded  as  a  unit  and  must 
comprehend  all  the  parties  then  before  the  court,  while  the 
recovery  must  be  certain  and  specific  in  the  amount  with  noth- 
ing left  to  implication ;  thus  a  judgment  for  "  four  hundred  and 
sixty-one  and  53-100  damages  "  is  not  for  a  certain  definite 
sum  of  money,  and  is  therefore  a  nullity,41  and  where  only 
numerals  are  used  without  some  mark  or  word  indicating  for 
what  they  stand,  the  judgment  is  insufficient.42  Otherwise,  to 
constitute  a  judgment  record  valid  upon  its  face  so  that  it 
may  be  enforced  by  action,  nothing  more  need  appear  by  it 
than  that  the  court  had  jurisdiction  of  the  subject-matter  of 
the  action  and  of  the  parties,  and  that  a  judgment  was  in  fact 
rendered.43  It  is  customary,  as  well  as  proper,  in  making  the 
entry,  to  set  out  the  names  of  the  parties  against  whom  the 
judgment  is  rendered,  but  it  seems  that  a  judgment  against 
"  said  defendants,"  the  title  of  the  cause  being  stated,  is  suffi- 

39  Guild  v.  Hall,  91  111.  223;  ment  is  not  rendered,  so  as  to  be  a 
Church  v.  Crossman,  41   Iowa,  373.  lien   from   the   time  of  its   "  rendi- 

40  Ry.  Co.  v.  Chicago,  53  111.  80;  tion,"  until  it  has  been  entered  upon 
Carpenter  v.  Sherfy,  71  111.  427;  the  record,  notwithstanding  an  entry 
Lirette  V.  Carrane,  27  La.  Ann.  or  direction  for  entry  has  been 
298;  Randolph  v.  Metcall,  6  Coldw.  signed  by  the  judge  and  endorsed 
(Tenn.)  400.  by  the   clerk   as   "filed."     Callanan 

41  Carpenter  V.  Sherfy,  71  111.  v.  Vatruba,  104  Iowa,  672;  Rock- 
427.  wood   v.   Davenport,   37    Minn.   533. 

42  Lawrence  V.  Fast,  20  111.  338 ;  But  see,  Durant  V.  Comegys,  2  Idaho, 
Avery  v.  Babcock,  35  111.  175.  809;  Johnson  v.  Schloesser,  146  Ind. 

43  Maxwell   v.    Stewart,   22   Wall.  509. 
77.     It  has  been  held  that  a  judg- 


JUDGMENTS    AND    DECREES.  539 

cient.44     And,  generally,  an  obscure  judgment  entry  may  be 
construed  with  reference  to  the  pleadings  and  record.45 

In  the  abstract  it  is  the  general  practice  to  give  the  name  of 
the  forum,  together  with  the  case  number  or  some  other  index 
for  the  purpose  of  reference ;  the  full  title  of  the  case,  and  a 
statement,  of  the  fact  of  judgment,  together  with  the  amount 
for  which  it  was  rendered.  A  synopsis  of  the  judgment  is 
rarely  given,  nor  is  it  at  all  necessary,  yet  the  examiner  should 
always  carefully  read  the  judgment  roll  for  errors  of  form 
or  substance;  as  the  omission  of  parties,  imperfect  recitals  of 
recovery,  etc.  Where  the  judgment  becomes  dormant  unless 
followed  by  execution  it  becomes  necessary  to  show  the  issu- 
ance and  return  of  the  execution,  provided  such  facts  appear 
of  record.  A  minute  of  judgments  in  personam  may  be  made 
in  this  manner: 

Judgments. 


Henry  W.  Newman 
vs. 
William-  Jasper. 


In  the  Superior  Court  of  Cook  County,  III. 
Case  No.  53 J  66. 
Assumpsit. 

Fee  Booh'  85,  page  585. 
Judgment  rendered  against  de- 
fendant, Dec.  9,  181 'k,  for  $63 %.- 
92. 

Execution  No.  22,998  issued,  dated  Dec.  9,  181k,  returned 
no  part  satisfied. 

Any  additional  matter  that  may  seem  material,  as,  the  is- 
suance of  alias  or  pluries  executions ;  remission  or  satisfaction 
of  any  part  of  the  judgment,  etc.,  may  be  shown  after  this 
point,  with  such  detail  as  may  be  necessary,  thus : 

44  Bank  of  Athens  v.  Garland,  109  534;  McCartrey  v.  Kittrell,  55  Miss. 
Mich.  515.  253;    Smith    v.    Chenault,    48    Tex. 

40  See,  Fowler  v.  Doyle,  16  Iowa,      455. 


540  ABSTRACTS    OF    TITLE. 

Dec.   18,  181k,  Plaintiff  remits  $103.61. 
Dec.  20,  1871/-,  Execution  (alias)  issued  and  returned  satis- 
fed  for  s  100.00. 

Where  the  lien  of  the  judgment  is  independent  of  execution 
the  note  of  the  issuance  of  same  is  immaterial,  except  as  it  may 
tend  to  show  a  reduction  or  partial  satisfaction;'  but,  in  many 
of  the  States,  when  execution  is  not  issued  on  a  judgment  within 
one  year  from  the  time  of  its  rendition,  the  lien  thereafter 
ceases  and  is  lost.46  Executions  may  also  become  operative  as 
liens  from  the  time  they  are  delivered  to  the  sheriff,  or  other 
proper  officer,  to  be  executed,  when  issued  during  the  statu- 
tory period,  even  though  the  general  lien  of  the  judgment 
has  been  lost  by  laches.47  Wherever  the  rule  last  stated  pre- 
vails the  issuance  of  execution  becomes  almost  as  important  as 
the  rendition  of  the  judgment,  and  in  abstracting  the  judgment, 
careful  search  must  also  be  made  for  executions,  and  should 
none  appear  of  record  it  would  seem  that  such  fact  should  be 
affirmatively  stated  rather  than  left  to  inference.  There  can 
be  no  doubt  that  this  course  would  frequently  save  inquiries 
by  counsel  and  greatly  expedite  his  labors.  In  continuations, 
where  the  former  examination  shows  a  judgment  upon  which 
no  execution  appears  to  have  issued  prior  to  the  date  of  such 
examination,  the  subsequent  steps,  if  any,  should  appear  in  the 
continuation,  either  by  re-exhibiting  the  judgment  and  result- 
ing proceedings,  or  by  setting  forth  the  substance  of  such  pro- 
ceedings in  a  note.48 

§  455.  Antecedent  Proceedings.  It  is  not  customary, 
in  abstracting  a  judgment,  to  show  anything  more  than  the 
mere  fact  of  rendition  in  the  manner  heretofore  indicated. 
'But  in  making  the  search  the  entire  judgment  roll  should  be 
perused  by  the  examiner  for  possible  defects.  While  the  law 
implies  a  presumption  of  regularity,  and  of  all  jurisdictional 

46  See,  Kirby  V.  Runals,  140  111.  reference  more  to  personalty  than 
289.  to  realty. 

47  These  provisions,  however,  have  48  See     also,     "  Satisfaction     and 

Discharge,"  infra. 


JUDGMENTS    AND    DECREES.  541 

facts  in  cases  where  the  record  is  silent,49  yet  where  the  record 
states  what  was  done  this  presumption  does  not  apply.50  Thus, 
it  will  he  presumed,  in  the  absence  of  anything  to  the  con- 
trary, that  a  personal  service  of  process  was  had  upon  the  de- 
fendant. But  if  the  record  shows  something  different,  as  that 
the  service  was  by  publication,  the  legal  presumption  cannot 
be  permitted  to  aid  the  record.  A  familiar  example  is  fur- 
nished in  the  case  of  a  deficiency  judgment  on  foreclosure.  If 
the  record  affirmatively  discloses  that  the  service  was  by  publi- 
cation, particularly  if  the  defendant  was  a  non-resident  of  the 
State,  such  a  judgment  would  be  void  and  no  lien  would  be 
created.51 

Again,  a  personal  judgment  must  as  a  rule,  be  preceded  by 
a  personal  service  of  summons  to  appear  and  answer  the  plain- 
tiff's demand.  It  will  often  happen,  however,  that  the  defend- 
ant was  not  served  Avith  process,  but  voluntarily  appeared  in 
the  case  by  attorney.  It  is  always  presumed  in  favor  of  a 
judgment  based  on  the  appearance  of  an  attorney,  that  the 
attorney  was  duly  authorized  for  such  purpose,  even  where 
there  is  an  appearance  without  service,52  and  in  a  collateral 
proceeding  this  presumption  is  conclusive.53  If  the  attorney 
was  without  authority  the  judgment  will  be  set  aside  on  mo- 
tion or  may  be  enjoined  in  equity,  but,  until  some  move  of  this 
kind  is  made,  the  courts,  from  reasons  of  public  policy,  will 
hold  the  appearance  good  and  the  proceedings  valid.  Still,  it 
would  seem  to  be  the  better  plan,  where  a  judgment  is  ren- 
dered without  service  and  on  appearance  of  attorney  only,  to 
show  these  facts  in  the  abstract. 

§  456.    Judgment  Against  a  Deceased  Person.     It  is  a 
rule  of  the  common  law,   and  one  generally  observed   in  all 

49  Galpin  v.  Page,   18   Wall.    (U.  52  Arnold  V.  Nye,  23  Mich.  2S6; 

8.)    350.  Fergusen    v.    Crawford,    70    N.    Y. 

BO  Hahn  v.  Kelly,  34  Cal.  301.  253. 

5iLatta  v.  Tutton,  122  Cal.  279;  53  Williams  V.  Johnson,  112  N.  C. 

and   see,   Griffith    v.    Harvester   Co.,  424. 
92  Iowa,   634;   Willamette,  etc.  Co. 
v.  Hendrix,  28  Oreg.  485. 


542  ABSTRACTS    OF    TITLE. 

the  States,  that  a  judgment  against  a  deceased  person  is  void, 
and  the  fact  that  service  may  have  been  obtained,  or  the  suit 
commenced  before  the  death  of  the  party,  in  the  absence  of 
any  statutory  provision  on  the  subject,  does  not  affect  the 
operation  of  the  rule.54 

It  has  been  held  in  a  large  number  of  cases,  however,  that 
where  a  court  has  once  acquired  jurisdiction  of  the  parties  and 
the  subject-matter  of  an  action,  a  judgment  rendered  against 
a  party  after  his  death  is  not  void,  if  the  death  has  not  been 
suggested  upon  the  record,  but  only  voidable,  and  this  doc- 
trine seems  to  have  been  adopted  in  a  number  of  States.  It 
is  conceded  that  the  rendition  of  such  judgment  is  erroneous, 
and  hence  subject  to  be  set  aside  or  vacated  on  motion  timely 
made.55 

The  subject  possesses  a  further  interest  for  the  examiner 
of  titles  in  cases  where  a  joint  judgment  has  been  rendered 
against  several  persons,  one  of  whom,  at  the  time  of  such  ren- 
dition, is  dead.  The  authorities  are  not  in  full  accord  as  to 
the  effect  of  such  judgment,  but  the  better  rule  would  seem 
to  be  that  it  should  be  regarded  as  a  unit  with  respect  to  all 
of  the  defendants  and  hence  void  as  to  all,  or,  at  least,  subject 
to  collateral  attack.56 

§  457.  Judgments  Against  Infants.  The  general  status 
of  infants  has  heretofore  been  referred  to  and  the  dangers  at- 
tendant upon  the  state  pointed  out.  It  may  be  said,  however, 
that  while  the  statute  usually  provides  that  infant  parties 
must  be  rep  resented  by  guardian,  either  general  or  ad  litem, 

54  Burke  i\  Stokely,  65  N.  C.  569;  death    will    be    valid    without    any 

Life  Assoc,   of  America  v.   Fassett,  notice   to   his    legal    representatives 

102    111.    315;    Weis    v.    Aaron,    75  on  revivor  by  scire  facias. 

Miss.     138.      Where    the    judgment  55  See,  Hayes   v.  Shaw,  20  Minn, 

was     recovered     prior     to     defend-  405;  Yaple  v.  Titus,  41  Pa.  St.  203 

ant's   death  it  may  be  revived  and  Jennings  V.   Simpson,   12  Neb.  565 

enforced   against   his    estate   by   sci  Coleman  v.  McAnulty,  16  Mo.  177 

fa:   Brown   V.   Parker,    15    111.   307.  Pied  v.  Holmes,  127  Mass.  326. 

While  if  execution  had  been  issued  56  Claflin  v.  Dunne,   129  111.  241; 

and    levied    during    the    lifetime    of  Weis  v.  Aaron,  75  Miss.  128. 
such    defendant,    a    sale    after    his 


JUDGMENTS    AND    DECREES.  543 

yet  a  judgment  rendered  against  an  infant  for  whom  no  guard- 
ian has  been  appointed  is  not,  for  that  reason,  void.  If  he 
in  fact  appeared  in  the  action,  and  an  appearance  by  attorney 
will  be  presumed  to  have  been  authorized,  the  judgment  will 
be  merely  voidable  at  his  instance  seasonably  expressed.57  If 
he  desires  to  vacate  such  judgment  he  must  move  for  same 
promptly  on  coming  of  age.  An  unexcused  delay  will  bar  his 
right.58 

§  458.  Exemptions.  The  homestead  acts  of  the  different 
States  have  created  an  exception  to  the  general  rule  which 
subjects  the  lands  of  the  debtor  to  the  lien  of  judgments  re- 
covered against  him,  and  an  exemption  from  levy  and  forced 
sale  is  made  of  certain  lands  which  shall  be  occupied  by  the 
debtor  as  a  homestead.  This  exemption  consists  either  of  a 
specific  allotment  of  land  determined  by  fixed  boundaries,  or 
of  an  estate  of  limited  duration,  measured  by  a  definite  money 
value  and  without  reference  to  the  quantity  of  land  occupied. 
The  lien  of  the  judgment  does  not  affect  such  homestead,  either 
in  the  possession  of  the  judgment  debtor  or  his  grantee.59  The 
only  exception  to  this  rule,  where  any  exception  is  permitted, 
is  where  the  debt,  for  which  the  judgment  was  rendered,  is  a 
liability  incurred  for  the  purchase  or  improvement  of  the 
land.60" 

§  459.  Satisfaction  and  Discharge.  Judgments  may 
be  discharged  by  an  entry  upon  the  record ;  by  a  formal  release 
or  satisfaction  filed  in  the  case ;  61  or  by  a  return  of  the  exe- 
cution fully  satisfied.  The  particular  method  employed  is  of 
little  moment  to  the  examiner  and  only  noticed  by  him  in  case 
of  a  continuation,  where  the  former  examination  shows  a  sub- 
sisting unsatisfied  judgment.  Even  in  this  instance  it  is  not 
absolutely  necessary  that  it  be  noticed  in  the  abstract,  as  his 

57  Childs  v.  Lanterraan,   103  Cal.  60  Bush  v.  Scott,  76  111.  524. 
387;    Kemp    V.   Cook,    18    Md.    130;  61  The   .satisfaction    piece,   though 
Cohn  v.  Baer,  134  Ind.  375.  filed,   is   not  a   record,   but   a    mere 

58  Eisenmenger  V.  Murphy,  42  warrant  to  the  clerk  to  enter  satis- 
Minn.  84.  faction  on  the  roll:   Lowns  V.  Rem- 

50  Green  v.  Marks,  25  111.  221.  sen,  7  Wend.   (N.  Y.)   35. 


544  ABSTRACTS    OF    TITLE. 

certificate  to  the  effect  that  there  are  no  judgments  unsatisfied 
of  record  would  be  sufficient  to  show  the  discontinuance  of  the 
lien,  yet  it  is  recommended  as  the  better  practice,  that,  where 
the  former  examination  shows  unsatisfied  judgments,  but  which 
subsequent  to  the  date  of  such  examination  and  prior  to  that 
of  the  continuation  have  been  discharged  or  satisfied,  and  which 
if  unsatisfied  would  still  be  a  lien,  such  satisfaction  or  dis- 
charge should  affirmatively  appear.  A  simple  note  will  in 
most  cases  be  all  that  is  required,  thus : 

Note. —  In  case  No.  lf.0,075  in  the  Superior  Court  of  Cook 
County  (Smith  v.  Jones),  judgment  was  rendered 
against  the  defendant,  on  October  10,  1812,  for  $250.00 
and  costs,  which  ivas  satisfied  of  record  December  1, 
1872,  by  plaintiff's  attorney. 

To  tliis  simple  statement  may  be  added  the  mention  of  any 
other  matter  which  may  seem  material,  as : 

Execution  No.  18,139  issued  thereon  dated  October  11,  1872, 
is  not  returned. 

§  4G0.  Decrees  Classified  and  Distinguished.  Decrees 
are  classified  as  interlocutory  and  final,  the  former  being  one 
which  only  partially  disposes  of  the  subject-matter,  or  of  a 
particular  portion  thereof,  leaving  something  still  to  be  done; 
the  latter,  disposing  of  the  whole  subject,  deciding  all  questions 
in  controversy,  ascertaining  the  rights  of  all  the  parties,  and 
awarding  the  costs.62  The  fact  that  something  remains  to  be 
done  to  carry  out  or  enforce  the  decree  does  not  render  it  any 
the  less  final,63  but  the  true  test  seems  to  be,  that  no  further 
necessity  exists  for  bringing  the  cause  again  before  the  court.64 

.    62  Taylor  v.  Reed,  4   Paige,   561;  toiy,    and    the    other    as    final,   the 

Mills  v.  Hoag,  7  Paige,  18;  Kane  v.  codes    designate   the   former   as   or- 

Whittick,  8  Wend.  224.  ders,   and   do  not   recognize   such  a 

63  To  avoid  the  confusion  incident  thing     as     an     interlocutory     judg- 

to   the   use   ot   the   word  judgment,  ment. 

in    two    senses,    one    as    interlocu-  64  Mills    v.    Hoag,    7    Paige,    18; 


JUDGMENTS    AXD    DECREES. 


545 


§  461.  Operation  and  Effect  of  Decrees.  A  formal  de- 
cree operates  differently  from  a  judgment,  but  its  effect  is  the 
same,  and  the  same  general  rules  apply  with  equal  force  to 
either.  As  res  ad  judicata  it  is  conclusive  upon  the  question 
actually  presented  or  directly  involved,05  though  not  upon 
collateral  issues,06  and  embraces  not  only  the  questions  actually 
contested  and  determined,  but  also  all  those  which  might  have 
been  if  they  had  been  reasonably  presented.67  It  is  binding  on 
parties  and  privies  and  imports  such  absolute  verity  that  it 
can  not  be  attacked  collaterally  on  account  of  mere 
irregularities  in  the  proceedings  by  one  not  a  party  in  interest,68 
nor  can  defects  therein  be  set  up  by  a  stranger  to  the  record, 
for  the  purpose  of  defeating  a  claim  of  right  to  land  based 
thereon.69  It  is  evidence  of  itself  to  sustain  a  conveyance 
made  under  it,70  but  where  it  does  not  in  terms  divest  the  title 


Butler  v.  Lee,  33  How.  251.  An  in- 
terlocutory decree  is  properly  a  de- 
cree pronounced  for  the  purpose  of 
ascertaining  matter  of  law  or  fact 
preparatory  to  a  final  decree.  There- 
fore, when  it  happens  that  some 
material  circumstance  or  fact  nec- 
essary to  be  made  known  to  the 
court  is  either  not  stated  in  the 
pleadings,  or  is  so  imperfectly  as- 
certained by  them  that  a  court  is 
unable  to  determine  finally  be- 
tween the  parties;  and  therefore,  a 
reference  to,  or  an  inquiry  before  a 
master,  or  a  trial  of  facts  before  a 
jury  becomes  necessary,  the  decree 
entered  for  that  purpose  is  an  inter- 
locutory decree.  The  court,  in  the 
meantime,  suspends  its  final  decree, 
until  by  the  master's  report,  or  ver- 
dict of  the  jury,  it  is  enabled  to 
decide  finally:  1  Barb.  Ch.  Prac. 
*  326 ;  Seaton  on  Decrees,  2 ;  1  Harr. 
Ch.  Prac.  420. 

«5  Geary  v.  Simmons.  39  Cal.  224; 
Cannon  v.  Brame,  45  Ala.  262; 
Foster  r.  The  Richard  Busteed,  100 


Mass.  409 ;  People  V.  Brislin,  80  111. 
423;  State  v.  Ramsburg,  43  Md. 
325.  When  a  judgment  or  decree 
is  rendered  by  consent,  or  as  the 
result  of  a  compromise,  it  can  not 
be  admitted  as  res  adjudicaia  : 
Wadhams  V.  Gay.  73  111.  415.  And 
such  decree  would  only  bind  the 
parties  consenting,  and  would  not 
affect  the  rights  of  others  not  made 
parties  to  the  suit,  but  who  should 
have  been:  Dibrell  v.  Carlisle,  51 
Miss.  785. 

go  Land  P.  Keirn,  52  Miss.  341; 
Eastman  I?.  Porter,  14  Wis.  39 ; 
Fish  v.  Lightner.  44  Mo.  268. 

C7Petersine  v.  Thomas,  28  Ohio 
St.  596;  Bates  v.  Spooner.  45  Ind. 
489;  Kungerford's  Appeal,  41  Conn. 
322;  Talbot  V.  Todd,  5  Dana,  193. 

esMyler  v.   Hughes,  60   Mo.   105. 

69  Lathrop  V.  American  Emig. 
Co.,  41  Iowa.  547;  Pettit  v.  Cooper, 
9  Lea    (Tenn.),  21. 

70  Grebbin  v.  Davis,  2  A.  K. 
Marsh.  (Ky.)  17;  Dunklin  v.  Wil- 
son, 64  Ala.   162. 


546  ABSTKACTS    OF    TITLE. 

of  the  defendant,  but  merely  directs  the  execution  of  a  deed, 
untiT  such  execution,  the  legal  title  remains  in  the  defendant.71 
A  reversal  of  the  decree  does  not  divest  the  title  of  a  purchaser 
thereunder  in  good  faith,72  who  is  a  stranger  to  the  record, 
but  all  rights  acquired  by  parties  to  the  suit  as  purchasers  of 
the  land  under  the  decree,  fall  with  the  reversal.73  A  decree 
upon  a  matter  not  involved  by  the  cause,  nor  in  issue  by  the 
pleadings,  is  coram  non  judice  and  void,74  and  will  be  treated 
as  a  nullity,  even  in  a  collateral  proceeding.75 

§  462.  Decrees  Rendered  on  Constructive  Notice. 
The  remarks  of  the  last  section  must  be  understood  to  apply 
more  particularly  to  decrees  which  have  been  rendered  upon  a 
full  hearing  of  the  case  and  with  all  the  parties  properly  be- 
fore the  court.  Where,  however,  there  has  been  no  personal 
service  upon  the  defendants,  and  such  persons  are  before  the 
court  only  constructively  by  a  substituted  service,  somewhat 
different  rules  prevail.  The  law  will  not  hastily  preclude  a 
person's  rights  when  he  has  had  no  opportunity  to  be  heard ; 
hence,  a  decree  entered  in  such  a  case  does  not  become  final 
and  conclusive  until  some  time  has  elapsed  during  which  the 
defendants  may  come  forward  and  urge  any  matter  they  may 
have  in  extenuation  or  defense.  The  time  allowed  for  this 
purpose  as  well  as  the  method  by  which  such  defendants  are 
let  in,  are  matters  of  local  statutory  regulation,  but  the  prin- 
ciple is  of  general  observance,  that  all  persons  acquiring  rights 
under  such  decree,  before  it  becomes  final  and  conclusive,  are 
equally  affected  with  notice  of  its  conditional  character ;  and 
all  interests  so  acquired,  whether  for  a  valuable  consideration 
or  otherwise,  are  entirely  dependent  upon  the  confirmation  of 
the  decree,  which,  if  vacated,  renders  all  proceedings  under  it 

71  Peak      v.      Ligon,      10      Yerg.       569;  Powell  v.  Rogers,  105  111.  318. 
(Tenn.)   469.  7 4  Meredith     v.     Little,      6     Lea 

72  Taylor    v.    Boyd,    3    Hammond        (Tenn.),   517. 

(Ohio),  353;  Lambert  V.  Livingston,  75  Monday   v.   Vail,   34    N.   J.   L. 

131  111.  161.  418. 

73  Fishback    v.    Weaver,    34    Ark. 


JUDGMENTS    AND   DECREES.  547 

a  mere  nullity,  and  of  this  all  persons  dealing  with  the  land 
must  take  notice.70 

In  this  connection  the  attention  of  the  examiner  is  directed 
to  the  antecedent  proceedings  and  the  character  of  the  process 
by  which  the  defendant  i's  brought  within  the  jurisdiction  of 
the  court.  Where  a  decree  is  based  on  a  constructive  service 
everything  essential  to  jurisdiction  must  appear.  The  de- 
fendant must  be  properly  named  or  identified.  In  other  words, 
he  must  have  notice,  and  if  the  fact  of  no  notice  affirmatively 
appears  upon  the  face  of  the  proceedings  the  judgment  is  void 
and  open  to  collateral  attack. '  Thus,  a  notice  to  — —  Smith, 
without  other  description  or  identification  will  not  suffice  to 
bring  John  Smith  into  court,  nor  will  a  judgment  rendered 
against  him  have  any  binding  effect.77 

§  463.  Lien  of  Decrees.  Decrees,  equally  with  judg- 
ments, create  liens  upon  the  lands  of  the  losing  party.  This 
follows  as  an  incident  where  there  is  a  money  decree  in  per- 
sonam,,78 while,  by  statute,  where  a  decree  is  pronounced  re- 
quiring a  party  to  perform  some  act  other  than  the  payment 
of  money,  it  may  be  made  a  lien  upon  the  property  of  such 
party  until  he  shall  perform  the  acts  mentioned  in  the  de- 
cree.79 In  the  first  instance  the  lien  has  the  same  force  and 
effect,  and  is  subject  to  the  same  limitations  and  restrictions  as 
judgments  at  law.80 

§  464.  Formal  Requisites  of  Decrees.  Unlike  judg- 
ments in  personam,  which  are  ordinarily  shown  only  by  a 
brief  reference,  decrees  and  judgments  in  rem,  or  which  af- 
fect or  implicate  title,  are  copied  almost  verbatim,  or  at  least 
set  forth   with  little  condensation.     The  formal  parts  of  de- 

76  Southern  Bank  v.  Humphreys,  sonally  before  the  court;  as  to  such 
47   111.   227.  defendants    the    bill    must    be    dis- 

77  Clark  v.  Hillis,  134  Ind.  421;  missed  without  prejudice;  Virden  V. 
Thompson    v.    McCorkle,    136    Ind.  Needles.  98  111.  36G. 

484.  79  Kirby  v.   Runals,   140  111.  289. 

78  Karnes  v.  Harper,  48  111.  527;  80  Karnes  V.  Harper,  48  111.  527; 
Yackle  v.  Wightman,  103  111.  169.  Eames  v.  Germania  Turnverein,  74 
No  personal  decree  can  be  rendered  111.  56. 

in  equity  against  defendants  not  per- 


548  ABSTRACTS    OF    TITLE. 

crees  are,  the  caption  and  title  of  the  cause ;  the  recitals ;  and 
the  ordering  or  mandatory  clause.  A  fourth  part,  called  the 
declaratory  clause,  is  sometimes  added.81  The  strictly  formal 
parts  which  relate  to  the  caption,  etc.,  may  in  some  cases  be 
abbreviated,  particularly  when  the  decree  is  shown  in  regular 
order  as  a  part  of  the  synopsis  of  the  proceedings  of  the  court 
which  pronounced  it,  but  when  the  abstract  is  made  from  a 
certified  copy  recorded  with  the  recorder  of  deeds,  it  is  ad- 
visable to  show  these  parts  also.  The  caption  shows  the  court ; 
term,  day,  etc.,  on  which  the  decree  was  rendered ;  the  name 
of  the  presiding  judge  or  chancellor ;  and  the  title  of  the  cause. 
The  recitals  are  now  very  meager  and  refer  briefly  and  gen- 
erally to  the  hearing,  pleadings  and  proofs,  and  to  the  fact  of 
their  having  been  duly  considered  by  the  court.  [Formerly  it 
was  customary  to  set  out  at  great  length  the  pleadings,  evi- 
dence, etc.,  but  this  practice,  by  reason  of  its  expense  and  in- 
convenience, has  been  discontinued,  and  the  inducement  of  the 
recitals  reduced  to  a  bare  mention,82  although  in  some  States 
the  evidence  still  is,  or  may  be,  preserved  in  some  instances 
in  this  manner.83  The  recitals  being  brief,  should  be  shown 
in  full.84  The  ordering  or  mandatory  clause  is  the  vital  part 
of  the  decree,  and  must  always,  with  the  exception  of  the 
part  referring  to  the  costs,  be  copied  verbatim.  This  part 
contains  the  specific  directions  of  the  court  with  reference  to 
the  subject-matter  before  it,  and  provides  for  the  final  dis- 
position of  the  rights  of  the  litigants.     All  decrees  must  be 

81  When  this  is  used  it  imrnedi-  ings  in  decrees  are  held  to  be 
ately  precedes  the  ordering  part,  prima  facie  evidence  of  the  exist- 
and  consists  of  a  declaration  of  the  ence  of  jurisdictional  facts,  while 
rights  of  the  parties.  It  is  not  nee-  the  recitals  frequently  have  the 
essary,  however,  and  its  omission  further  effect  to  cure  defects  of 
will  not  invalidate  the  decree.  service,    etc.     For    this    reason    the 

82  Dousman  v.  Hooe,  3  Wis.  466.       recitals  should  be  fully  stated.     See 
83Cooley  V.  Scarlett,  38  111.  316;       Turner  v.  Jenkins,  79  111.  228;   Ri- 

Walker  v.  Gary,  53  111.  470.  vard  v.  Gardner,  39  111.  125 ;  Pretty- 

84  Though  formerly  a  stricter  rule  man     v.     Barnard,      37     111.      105; 

prevailed,     every     reasonable     pre-  Haworth    v.    Hiding,     87    111.    23; 

sumption  is  now  indulged  in   favor  Belden  v.  Meeker,  2  Lans.    (N.  Y.) 

of   the    jurisdiction    of    a    court    of  470. 
general   jurisdiction,    and    its    find- 


JUDGMENTS   A3TD   DECREES.  549 

founded  on,  and  in  conformity  with,  the  allegations  and  proofs ; 
and  can  not  be  based  upon  a  fact  not  put  in  issue  by  the  plead- 
ings.85 When  not  supported  by  the  pleadings  they  are  as  fa- 
tally defective  as  though  not  sustained  by  the  verdict  of  find- 
ings.86 

Where  a  decree  directly  affects  land,  as  in  case  of  fore- 
closure or  other  action  in  rem,  it  is  of  vital  importance  that 
the  description  be  accurate  and  certain.  The  rules  of  con- 
veyancing, which  permit  reference  to  extrinsic  facts  to  aid  the 
intention  of  the  parties,  have  no  application  to  descriptions 
found  in  judicial  decrees,  or  deeds  of  conveyance  founded 
upon  them,  nor  can  the  assistance  of  equity  be  invoked  to  re- 
form such  descriptions.87  Hence,  if  the  decree  and  resulting 
deed  are  so  defective  that  it  can  not  be  ascertained  by  inspec- 
tion, or  from  data  which  they  furnish,  what  property  was  in 
fact  sold,  or,  if  in  order  to  ascertain  the  intention  of  the  officer 
selling  it  becomes  necessary  to  institute  an  extraneous  inquiry, 
the  proceeding  will  be  void  for  uncertainty.88 

§  465.  Abstract  of  Decrees.  From  what  has  been  said 
it  will  be  perceived  that  an  abstract  of  a  decree,  unless  it  pre- 
serves the  evidence,  can  consist  of  little  else  than  a  copy  of 
such  decree.  The  recitals  may  permit  of  some  condensation, 
and  the  mandatory  parts  that  refer  to  the  costs  are  also  sus- 
ceptible of  the  same  treatment.  The  verbiage  of  the  caption 
may  also  be  condensed  and  parts  thereof  omitted,  thus : 


Alexander  Stewart 

vs. 

Charles  Ballon. 


Circuit  Court  Cook  County. 
June  Term,  1883. 
In  Chancery. 

Recites,  that  this  cause  having  come 
on    to    he    heard    upon    the    pleadings 
herein  and  the  proofs  taken  in  said  cause,  and  having  been 

85  1   Barb.  Ch.  Prac.  *  339 ;   Car-       Eq.  54G;  Parsley  v.  Nicholson,  G5  N. 
neal     V.     Banks,     10     Wheat.     181;       C.  207. 

Maunday  V.  Vail,  34  N.  J.  L.  418.  87  Lewis  v.  Owen,  64  Ind.  44G. 

86  Bachman  v.  Sepulveda,  39  Cal.  88  Evans   v.   Ashley,   8   Me.    177; 
688;  Marshman  v.  Conklin,  21  N.  J.       Bowen  v.  Wickersham,  124  Ind.  404. 


550  ABSTRACTS    OF    TlTl/B. 

argued  by  counsel,  and  the  court  having  duly  considered  the 
same,  and  being  fully  advised  in  the  premises;  89 

Doth  order,  adjudge  and  decree,  that  the  said  deed  of  con- 
veyance from  William  Jones  and  wife  to  the  defendant, 
Charles  Ballon,  bearing  date  January  Jf,  1882,  of  the  lands 
described  as  follows,  to  wit:  [set  out  description]  >and  recorded 
in  the  recorders  office  of  Cook  County,  111.,  as  Doc.  129,21+2, 
be,  and  the  same  is  hereby  set  aside  and  declared  null  and 
void,  as  against  the  complainant,  his  heirs  and  assigns,  as  a 
cloud  upon  the  title  of  the  complainant ;  and  that  the  defend- 
ant, Charles  Dalton,  do  deliver  up  the  said  deed  to_  be  canceled 
by  the  clerk  of  tliis  court.00 

Further  ordered,  that  defendant  pay  costs  of  this  suit,  to  be 
taxed,  and  that  execution  issue  therefor.Qi 

§  466.  Errors  and  Defects.  Errors  and  defects  in  judg- 
ments or  decrees  require,  when  apparent,  appropriate  mention. 
But  the  defects  that  are  noticeable  are  mainly  confined  to  mat- 
ters of  practice,  form,  etc.,  and  vital  defects,  from  their  very 
nature,  are  frequently  undiscernible.  Thus,  a  judgment 
against  an  individual  as  a  defendant,  by  a  name  •which  is  not 
his  in  contemplation  of  law,  can.  not  ordinarily  be  enforced 
against  him,92  and  certainly  is  not  constructive  notice  of  a 
lien   upon   his   land.93     It   has   in   some   instances   been   held, 

S9  Recitals  in  a  decree  of  a  court  cree  canceling  a  deed  may  direct  the 

of  inferior  jurisdiction  of  the  facts  clerk  to  enter  the  fact  on  the  margin 

necessary    to    give    jurisdiction    are  of  the  record  of  such  canceled  deed: 

prima  facie  evidence  of  such   facts,  Jones   V.  Porter,  59  Miss.  628. 
subject     to     be     contradicted,     but  91  This  is  equivalent   to  a  money 

sufficient  per  se  to  uphold  the  pro-  judgment   and    creates    a    statutory 

ceeding    if    uncontradicted:      Belden  lien  on  the  defendant's  lands. 
v.  Meeker,  2  Lans.   (N.  Y.)  470.  92  Farnham  V.  Hihlreth,  32  Barb. 

90  Equity    will    generally    compel  27" ;    Thomas   v.    Desney,    57    Iowa, 

an    instrument    to    be    delivered    up  58. 

for  cancellation,   where  it  has  been  93  Thomas    v.    Desney,    57    Iowa, 

declared  inoperative,  and  may  pos-  58;   Grundies  v.  Reid,   107   111.  304. 

sibly  do  harm  if  allowed  to  remain  Thus,   a   judgment   against  Mrs.   J. 

in    defendant's    hands:      Keemle    V.  B.  Smith,  is  not  constructive  notice 

Conrad,  12  Phila   (Pa.)   524.     A  de-  that  it  is  a  lien  on  land  owned,  by 


JUDGMENTS   AND   DECREES.  551 

that  a  judgment  in  an  action  in  which  the  defendant  is  named 
in  all  the  proceedings  therein  by  a  different  name  from  that 
of  a  particular  existing  individual,  will  be  of  no  avail  against 
the  latter,  even  if  entered  up  against  him  by  his  real  name, 
although  process  was  in  fact  served  upon  him,  when  the 
name  of  the  defendant  in  such  process  was  not  his ;  94  because, 
unless  he  actually  appeared  in  the  action,  no  jurisdiction  over 
him  was  obtained  therein  by  the  service  of  such  process.95 
But  the  weight  of  authority  would  seem  to  indicate  that  if 
the  process  is  served  on  the  party  intended  to  be  served, 
though  by  a  wrong  name,  and  he  fails  to  appear  and  plead  the 
misnomer  in  abatement  and  suffers  judgment  to  be  obtained 
against  him,  he  is  concluded,  and  in  all  future  litigation  may 
be  connected  with  the  suit  or  judgment  by  proper  averments.96 
In  compiling  an  abstract,  however,  the  two  matters  just 
noted  would  not  be  treated  alike.  In  the  former  case,  the 
name  of  the  judgment  debtor  not  being  the  same  as  the  party 
whose  title  is  under  consideration,  the  judgment  might  with 
safety  and  propriety  be  disregarded ;  as  where  the  name  of  the 
land  owner  is  "  Freeman  "  Jones,  and  that  of  the  judgment 
debtor  "  Herman "  Jones.97  But  in  the  latter,  though  the 
judgment  debtor  was  sued  by  a  wrong  name,  yet  inasmuch  as 
judgment  was  entered  against  him  by  his  true  name,  such 
judgment  must  substantially  appear,  together  with  so  much  of 
the  proceedings,  including  the  process  and  return,  as  will 
show  the  repugnancy  or  invalidity,  and  the  opinion  of  title 
should  specifically  pass  upon  the  facts  thus  exhibited. 

Mary   Smith,    notwithstanding   that  (N.  Y.)  470;  Ford  v.  Doyle,  37  Cal. 

she    is    the    wife    of    J.    B.    Smith;  346. 

Bankers,   etc.   Co.   r.    Blair,   99   Va.  96  See    Bloomfield    R.    R.    Co.    v. 

606.  Burgess,  82  Ind.  83;  National  Bank 

94  Bates    v.    State    Bank,    7    Ark.  v.    Jaggers,    31    Md.    38;    Walsh    v. 

394.     In   this   case   service   was   re-  Kirkpatrick.    30   Cal.    202 ;    Foshier 

turned  as  had  upon  Asher  B.  Bates  v,  Narver,  24  Orcg.  441. 

and  judgment  was  rendered  against  9  7  Farnham  v.  Hildreth,  32  Barb. 

Ashley    B.    Bates.  277;    Thomas   r.   Desney,    57    Iowa, 

95Moulton  v.  De  Macarty,  6  Rob.  58;    Kennedy    v.    Merriam,    70    111. 

228. 


552  ABSTRACTS   OF   TITLi. 

§  467.  Continued  —  Middle  Names.  A  more  perplex- 
ing question  arises  in  case  of  correct  Christian  and  surnames, 
but  wrong  middle  names  or  initials.  The  authorities  are  all 
agreed  that  the  law  requires  and  recognizes  but  one  Christian 
narae,  and  that  the  omission  or  insertion  of  middle  names  or 
initials  is  immaterial,98  yet  in  many  instances  the  middle 
name  is  the  only  clue  by  which  judgment  debtors  can  be  iden- 
tified. In  populous  localities  it  is  not  always  expedient  to 
show  all  the  judgments  appearing  against  a  particular  name. 
Say  the  person  whose  title  is  under  consideration  is  named 
John  !R.  Smith,  and  the  record  discloses  judgments  against 
"  John  Smith,"  and  John  Smith  with  middle  initials  other 
than  "  R,"  now  what  course  must  be  pursued  in  view  of  the 
propositions  last  presented  ?  To  insure  absolute  certainty, 
every  judgment  that  comes  within  the  rule  must  be  shown,  and 
this  in  many  cases  would  be  impracticable,  for  to  exhaust  the 
possibilities  as  to  John  Smith  might  require  hundreds  of 
searches.  In  the  absence  of  positive  instructions,  therefore, 
when  questions  of  doubt  arise,  the  examiner  usually  looks  only 
for  judgments  against  the  particular  name  under  consideration, 
and  in  his  certificate  expressly  states  that  no  search  has  been 
made  for  the  other  names." 

While  this  practice  is  sometimes  condemned  it  is  yet  in 
consonance  with  the  general  tendency  of  the  courts  in  constru- 
ing docket  entries  and  enforcing  judgments.  It  is  now  a 
common  statutory  requirement  that  the  judgment  docket  shall 
set  forth  the  name  at  length  of  each  judgment  debtor.  Hence, 
if  the  true  name  of  the  judgment  debtor  is  "  John  R.  Smith  n 
but  judgment  is  docketed  against  him  as  "  John  Smith," 
while  the  judgment  might  be  effective  as  between  the  parties 
it  would  be  of  no  effect  as  against  a  purchaser.1      In  the  cases 

08  Thompson  v.  Lee,  21   111.  242;  99  This  matter  is  further  consid- 

Bletch  v.  Johnson,  40  111.  116;  Alii-  ered     in     the     chapter     devoted    to 

son  l?.  Thomas,  72  Cal.  562 ;   Choen  "  Opinions  of  Title." 

v.  State,  52  Ind.  347,  in  this  case  it  1  Terry  v.  Sisson,  125  Mass.  560; 

is  said  the  middle  name  is  mere  sur-  Dirt  ton    v.    Simmons,    65    Me.    583; 

plusage.  Hutchinson's    Appeal,    92    Pa.     St, 


JUDGMENTS   AND   DECREES.  553 

which  support  this  doctrine  it  is  held  that  the  middle  name  or 
initial  is  an  essential  part  of  the  name  and  that  the  omission 
of  such  middle  name  or  initial,  or  the  substitution  of  others 
than  the  true  one,  is  a  misdescription  of  the  person,  the  tend- 
ency of  which  is  to  deceive  intending  purchasers.  The  ob- 
ject of  the  statute  is  that  the  docket  shall,  of  itself,  furnish 
reasonably  satisfactory  evidence  as  to  whether  a  judgment  ex- 
ists against  the  person  shown  by  the  records  to  own  the  land 
which  prospective  purchasers  seek  to  acquire.  In  order  to 
make  the  judgment  lien  effective  as  constructive  notice  to  sub- 
sequent purchasers  the  true  name  should  be  shown  and  if  the 
index  fails  to  make  this  disclosure,  and  the  purchaser  has  no 
actual  knowledge  of  the  identity  of  the  judgment  debtor,  he 
should  take  the  land  freed  from  the  lien.2 

§  468.  Continued  —  Initials  —  Idem  sonans.  The 
same  perplexity  arises  where  only  initials  are  employed,  an 
incorrect  yet  nevertheless  common  practice.  A  judgment 
docketed  against  "  A.  Jones  "  has  been  held  sufficient  notice  of 
a  judgment  against  "  Abel  Jones,"  where  the  defendant  uni- 
formly wrote  his  name  by  his  initials  and  there  was  no  other 
"  A.  Jones  "  in  the  county.3 

Again,  the  examiner,  and  counsel  as  well,  must  deal  with 
the  discordant  doctrine  of  idem  sonans.  Thus,  a  judgment 
against  John  "  Bobb  "  was  in  one  instance  permitted  to  operate 
as  a  lien  on  land  owned  by  John  "  Bubb,"  4  and  one  against 
Henry  "  Hackman  "  was  in  another  case  allowed  to  participate 
against  the  property  of  Henry  "  Heckman."  5     It  is  said  in 

186;  Ridgeway's  Appeal,  15  Pa.  «t.  3  Jones   Estate,   27    Pa.    St.   336; 

177.  Hart  v.  Lindsey,  17  N.  H.  235. 

2  Crouse  v.  Murphy,   140  Pa.  St.  4  Meyer  v.  Fegaly,  39  Pa.  St.  429. 

335.     The   docket  entry   of  a  judg-  5  Bergman's    Appeal,    8S    Pa.    St. 

ment    against    Edward    Davis    was  123.      The     names     "  Welch  "     and 

held  not   to  constitute   constructive  "Welsh  "   are   idem    sonans.      Dono- 

notice  of  a  lien  on  the  land  of  either  hoe-Kelly    Banking    Co.    v.    South. 

E.   A.   Davis   or   Edward   A.   Davis.  Pac.  Co.,   138  Cal.   183;   so   are  the 

See,  Davis  v.  Steeps,  87  Wis.   472;  names    Watkins    and    Wadkins,    be- 

and  see,  Johnson  v.  Hess,  126  Ind.  cause,  i1  is  said,  in  casual  pronuncia- 

298.  tion  there  is  scarcely  any  difference 


554  ABSTRACTS   OF    TITLE. 

support  of  these  precedents  that  identity  of  sound  is  a  surer 
designation  of  the  names  of  persons  than  identity  of  orthog- 
raphy, and  that  in  ascertaining  identity  of  sound  the  prevail- 
ing usage  in  pronunciation  in  the  locality  will  prevail.  It  is 
also  contended  that  persons  searching  the  judgment  docket  for 
liens  ought  to  know  the  different  forms  in  which  the  same  name 
may  he  spelled,  and  to  make  their  searches  accordingly;  un- 
less indeed  where  a  spelling  is  so  entirely  unusual  that  persons 
can  not  be  expected  to  think  of  it.6 

It  is,  however,  the  duty  of  a  judgment  creditor  to  see  that 
his  judgment  is  properly  entered,  and  in  such  a  manner  as 
to  furnish  to  the  eye  of  purchasers  and  subsequent  incum- 
brancers, that  record  notice  which  the  law  contemplates,7  there- 
fore, while  slight  variations  not  materially  changing  the  sound 
may  be  permitted  to  stand  under  the  rule  of  idem  sonans,  total 
departures  in  initial  letters,  misleading  the  searcher  and  fail- 
ing to  furnish  him  with  proper  clues,  can  not  be  allowed. 
As  where  the  judgment  debtor  is  named  "  Yoest,"  but  the 
judgment  is  docketed  "  Joest,"  notwithstanding  that  the  for- 
eign pronunciation  of  the  name  is  the  same  using  either  initial, 
yet  the  eye  is  misled,  and  the  law  does  not  impose  upon  any 
one  who  searches,  the  duty  of  inquiring  whether  some  other 
letters  may  not  spell  the  name  of  the  debtor  in  another  lan- 
guage.8 So,  too,  a  material  change  in  the  spelling,  although 
preserving  to  a  large  extent  the  original  sound  of  a  name,  is 
fatal  to  the  lien  as  against  one  having  no  notice.  Thus,  the 
names  "  Hesser "  and  "  Hesse "  are  so  dissimilar  that  one 
searching  for  incumbrances  against  the  former  would  not  be 

in  the  sounds.     Bennett  v.  State,  62  H.   Furman  are  not  charged  notice 

Ark.    516.     See    Lyon    r.    Kain,    36  of  incumbrances  by  W.  H.  Freeman, 

111.    368,    where    Emonds,    Emmens,  Howe  r.  Thayer,  49  Iowa,  154. 

and  Emmons,  were  all  held  to  have  6  See  Meyer  v.  Fegaly,  39  Pa.  St. 

practically     the     same     sound     and  429. 

hence  to  be  within  the  rule.     On  the  7  Hutchinson's  Appeal,  92  Pa.  St. 

other  hand,   it   has  been   held,  that  186. 

Hyde  and  Hite,  do  not  come  within  8  Heil's   Appeal,   40   Pa.    St.   453. 

the  rule,  State  v.  Williams,  68  Ark.  But  see  Kirtz  v.  Behrensmeyer,  125 

241.     And  that  purchasers  from  W.  111.   141. 


JUDGMENTS   AND   DECREES.  555 

charged  with  notice  of  a  judgment  against  the  latter,  nor  put 
upon  inquiry.9 

But  while  it  is  undoubtedly  true,  that  the  law  of  notice  by 
record  is  addressed  to  the  eye  and  not  to  the  ear,  and  that 
record  notice  is  principally  a  matter  of  sight  and  not  of  sound, 
yet,  it  is  held,  it  is  above  all  a  matter  for  the  consideration 
of  the  mind,  and  if  the  record  of  a  name  spelled  in  one  way 
should  directly  suggest  to  the  ordinary  mind  that  it  is  also 
commonly  spelled  another  way,  the  searcher  should  be  charged 
with  whatever  the  record  may  show  in  some  other  spelling,  par- 
ticularly under  the  same  initial  letter.  Hence,  a  judgment 
against  "  Seibert "  was  held  to  be  notice  to  purchasers  of  prop- 
erty owned  by  "  Sibert."  10  It  will  be  seen,  therefore,  that  the 
subject  is  one  of  doubt  and  uncertainty,  and  because  of  this  an 
additional  burden  of  care  and  diligence  is  cast  upon  both  ex- 
aminer and  counsel. 

§  469.  Operation  and  Effect  of  Probate  Decrees.  A 
decree  of  a  probate  court  acting  within  the  sphere  of  its  juris- 
diction, is  conclusive  upon  all  those  to  whom  the  right  of  ap- 
peal is  given,  1X  when  such  right  is  unexercised,  and  as  to  all 
matters  which  appear  from  the  record  to  have  been  adjudi- 
cated upon; 12  and  all  such  decrees,  where  the  court  has  juris- 
diction of  the  subject-matter,  will  be  presumed  to  have  been 
made  upon  proper  notice  and  formal  proceedings,  even  though 
such  proceedings  do  not  appear  of  record.13 

Orders  of  sale  made  by  probate  courts  are  a  class  of  de- 
crees to  which  the  attention  of  the  examiner  is  particularly 
directed.  These  orders  are  essential  parts  of  the  title  and  call 
for  severe  scrutiny.  It  has  been  held  that  an  order  of  court 
for  the  sale  of  land  must  in  itself  be  sufficient  without  refer- 


9  iEtna    Ins.    Co.    V.    Hesser,     77  H  Lawrence   V.    Englcsby,   24   Vt. 

Towa,  381;   and  see  Bates  v.  Bank,  42. 

7  Ark.  394;  Anthony  v.  Taylor,  68  l2Rix  v.  Smith,  8  Vt.   356. 

Tex.  403.  l3Sparhawk   v.   Buell,  !)  Vt.  41; 

io  Green  V.   Myers,  98   Mo.   App.  Pollock  v.  Buio,  43  Miss.  140.     But 

438.  see    Martin    v.    Williams,    42    Miss. 

210, 


556  ABSTRACTS    OF    TITLE. 

ence  to  extraneous  matters,14  and  where  the  description  is  insuf- 
ficient the  sale  will  be  invalid.15 

§  470.  Foreign  Judgments  and  Decrees.  The  courts 
of  a  country  have  no  extraterritorial  jurisdiction,  hence,  they 
can  not,  by  judgment  or  decree,  affect  title  to  land  situated  in 
a  foreign  country.  It  is  true,  that  courts  of  equity  may,  and 
do,  entertain  bills  for  the  specific  performance  of  contracts  re- 
specting lands  situate  in  a  foreign  country,  if  the  parties  are 
resident  within  the  territorial  jurisdiction  of  the  court,  but, 
in  such  cases,  the  court  can  not  bind  the  land  itself  by  any 
decree  it  may  make ;  it  can  only  bind  the  conscience  of  the 
party  in  regard  to  the  land,  and  enforce  him,  by  process  against 
his  person,  to  perform  his  agreement. 

14  A  decree  need  not  set  out  the  dence  warranted  the  decree,  Bree  V. 

evidence  on  which  it  is  founded  but  Bree,  51  111.  367. 

should    find   the   allegations   of   the  15  Crosby  v.  Dowd,  61   Cal.   557', 

petition  to  be  proved,  and,  generally,  Hill  v.  Wall,  66  Cal.  130. 
it  will   be  presumed   that  the  evi- 


CHAPTEK  XXVII. 


JUDICIAL    AND    EXECUTION    SALES. 


§  471. 

Defined  and  distinguished. 

§  483. 

472. 

Execution    sales  —  Validity 

484. 

and   effect. 

485. 

473. 

Title  under  execution  sales. 

474. 

When  the  title  vests. 

486, 

475. 

The  writ. 

487. 

476. 

The  levy. 

488, 

477. 

Notice  of  sale. 

489. 

478. 

Proof  of  publication. 

490. 

479. 

Execution   sales  as  affected 

by  death. 

491. 

480. 

Exemption. 

492. 

481. 

Dower  rights. 

493. 

482. 

Judicial        sales  —  Validity 

and  effect. 

494. 

Title    under    judicial    sales. 

Rights   of  purchasers. 

Compelling  purchaser  to  ac- 
cept title. 

Order  of  confirmation. 

Effect  of  confirmation. 

Certificate  of  sale. 

Assignment  of  certificate. 

Proof  of  title  under  judicial 
and  execution  sales. 

Continued  —  Presumptions. 

Probate  sales. 

Nature  and  requisites  of 
probate  sales. 

Abstract  of  probate  sales. 


§  471.  Judicial  and  Execution  Sales  —  Defined  and 
Distill  guislied.  Xo  inconsiderable  portion  of  the  real  prop- 
erty of  the  country  changes  hands  every  year  through  the  media 
of  execution  and  judicial  sales,  meaning  by  such  terms,  all 
sales  and  transfers  of  property  made  in  pursuance  of  the  or- 
ders, judgments  or  decrees  of  courts,  or  sales  made  to  obtain 
satisfaction  of  such  orders,  judgments  or  decrees.  The  term 
"  judicial  sale  "  is  properly  applied  only  to  sales  made  in  con- 
formity to  an  order  or  decree  directing  same,  and  requiring 
a  subsequent  confirmation  or  approval  by  the  court.1  "  Exe- 
cution sales,"  though  based  upon  a  judgment,  are  made  under 


l  Mr.  Freeman  classes  judicial 
sales  as:  (1)  those  made  in  chan- 
cery; (2)  those  made  by  executors, 
administrators  and  guardians,  when 
acting  by  virtue  of  authority  de- 
rived  from   orders  of   sale  obtained 


in  judicial  proceedings;  and  (3)  all 
other  cases  where  property  is  sold 
under  an  order  or  decree  of  court 
designating  such  property,  and  au- 
thorizing its  sale:  Freeman  Void. 
Jud.  Sales,  15. 


557 


558  ABSTEACTS    OF    TITLE. 

the  statute,  for  the  recovery  of  a  specific  sum  of  money  in  sat- 
isfaction of  the  judgment.  "  The  chief  differences  between 
execution  and  judicial  sales/'  says  Freeman,  "are  these:  the 
former  are  based  on  a  general  judgment  for  so  much  money, 
the  latter  on  an  order  to  sell  specific  property ;  the  former  are 
conducted  by  an  officer  of  the  law  in  pursuance  of  the  direc- 
tions of  a  statute;  the  latter  are  made  by  the  agent  of  a  court 
in  pursuance  of  the  directions  of  the  court;  in  the  former  the 
sheriff  is  the  vendor,  in  the  latter,  the  court;  in  the  former  the 
sale  is  usually  complete  when  the  property  is  struck  off  to 
the  highest  bidder;  in  the  latter  it  must  be  reported  to  and 
approved  by  the  court."  2 

Sales  made  under  an  execution  must  conform,  in  all  re- 
spects, with  the  rules  which  the  law  lays  down  for  the  protec- 
tion of  the  debtor.  If  not  so  made,  they  may  be  held  irregular 
and  void.  But  sales  made  under  the  decree  of  a  court  are, 
to  a  considerable  extent,  under  the  discretionary  control  of  the 
court,  which  often  sets  them  aside,  although  no  error  or  irregu- 
larity has  been  committed,  merely  for  the  sake  of  an  advance 
in  the  price ;  or  which  may,  if  satisfied  that  no  injustice  has 
been  done,  disregard  irregularities  in  the  conduct  of  the  sale, 
and  confirm  the  action  of  the  master  or  other  officer  making 
same.3  An  erroneous  or  voidable  judgment  or  decree  stands 
good  until  reversed ;  and  a  stranger  who  purchases  property 
sold  under  such  judgment  or  decree  will  generally  be  protected 
in  his  purchase.4 

§  472.  Execution  Sales  —  Validity  and  Effect.  It  is  a 
familiar  principle  that  statutory  proceedings  to  divest  title  to 
land  must  be  strictly  pursued ;  and  that  a  substantial  departure 
from  the  requirements  of  the  statute  renders  the  proceedings 
void.5     As  a  rule,  the  sheriff  is  presumed  to  have  done  his 

2  Freeman  on  Void  Jud.  Sales,  V  Pundt,  1  Neb.  211;  Storm  v. 
14.  Smith,    43    Miss.    497;    Garrett    v. 

3  Lasell  v.  Powell,  7  Coldw.  Lynch,  45  Ala.  204;  Sinnett  V. 
(Tenn.)  277.  Cralle,  4  W.  Va.  600. 

4  South  Fork  Canal  Co.  V.  Gor-  5  Stillvvell  v.  Swarthaut,  81  N.  Y. 
don,  2  Abb.  (U.  S.)  479;  McAusland  109;   Havens  v.   Sherman,  42  Barb. 


JUDICIAL    AND    EXECUTION    SALES.  559 

duty  in  making  a  sale,  and  to  have  complied  with  all  the  re- 
quirements of  law.6  But  this  rule  does  not  apply  where 
the  fact  that  the  sale  was  in  violation  of  the  statute,  is  apparent 
on  the  face  of  the  record  through  which  the  title  is  claimed,7 
although  the  validity  of  a  purchaser's  title  will  not  be  affected 
by  the  failure  of  the  officer  to  make  a  seizure  in  the  mode,  or 
by  the  steps,  prescribed  by  the  statute,  when  such  failure  con- 
sists of  mere  irregularities.8  His  power  to  sell  comes  from 
the  judgment  and  execution,  and  is  not  to  be  measured  by  his 
proceedings  under  the  writ.9  Greater  strictness  is  required 
in  conducting  the  sale,  the  details  of  which  are  regulated  by 
express  statutory  provisions  in  all  the  States,  and  non-com- 
pliance in  this  particular,  as  by  offering  land  in  gross  instead 
of  in  parcels,  etc.,  will  be  sufficient  to  vitiate  the  proceeding, 
and  the  sale  may  be  set  aside,  even  as  against  a  stranger  who 
has  bought  the  property  and  paid  the  price.10 

One  who  buys  at  execution  sale  is  not  an  innocent  pur- 
chaser in  the  full  meaning  of  the  term,  but  takes  the  estate 
subject  to  all  equities  existing  against  it  at  the  time  of  the 
purchase,  and  is  chargeable  with  notice  of  all  defects  in  the 
execution  debtor's  title,  together  with  the  value  of  the  property 
and  of  its  situation,  and  of  the  legal  rules  bearing  upon  the- 
•transaction.11  Where,  however,  a  purchaser  looks  to  the  rec- 
ord and  finds  there  a  subsisting  judgment,  and  buys  in  good 
faith,  pays  the  price  and  receives  a  deed,  he  takes  a  title  which 
is  valid  until  the  sale  is  set  aside  and  the  purchase  money  re- 
funded.12 

The  doctrine  of  caveat  emptor  applies  to  every  purchaser  at 

636;   Surgi  V.  Colmer,  22  La.  Ann.  10  Vass   V.   Johnson,   41    Ind.    19; 

20.  Browne  v.  Ferrea^51  Cal.  552;  Mor- 

6  Leonard  r.  Sparks,  117  Mo.  103;  ris  v.  Robey,  73  111.  462.  Compare 
Hogue  r.  Corbit,  156  111.   540.  Eaton  ;;.  Ryan.  5  Neb.  47. 

7  Piel  v.  Brayer,  30  Ind.  332.  11  Richardson  r.  Wicker,  74  N.  C. 

8  Wood  v.  Morehouse,  1  Lans.   (N.  278;   Allen  v.  MeGaughey,  31   Ark. 
Y.)    405;    Stewart  v.  Pettigrew,   28  252;  Morris  v.  Robey,  73  111.  432. 
Ark.  372;  Curd  v.  Lackland,  49  Mo.  J  2  Owen    v.    Navasota,    44    Tex. 
451.  517;   Wing  V.  Dodge,  80  111.  564. 

9  Blood  v.  Light,  38  Cal.  649. 


560  ABSTRACTS    OF    TITLE. 

a  sheriff's  sale.  He  buys  at  his  peril,  and  succeeds  only  to  the 
right  and  title  which  the  defendant  in  execution  had  at  the 
time  the  judgment  was  rendered  against  him.13  The  selling 
officer  has  no  power  to  warrant  the  title  and  the  purchaser  is 
presumed  to  have  made  all  proper  examinations  and  to  know 
what  he  is  acquiring.14  The  judgment  is,  of  course,  the  foun- 
dation for  the  title,  and  the  purchaser  must  see  to  it  that  at 
the  time  of  the  sale  such  judgment  is  subsisting  and  unsatis- 
fied, for,  however  innocent  he  may  be,  he  can  acquire  no  title 
when  the  power  which  confers  the  same  has  ceased  to  exist.15 

§  473.  Title  under  Execution  Sale.  A  purchaser  at  an 
execution  sale  succeeds  to  all  the  rights  which  the  judgment 
debtor  had,16  and  takes  the  same  title  possessed  by  him  with 
all  its  imperfections  and  infirmities.17  It  is  the  policy  of  the 
law,  however,  to  uphold  and  protect  such  titles,  and  though 
the  deed  purports  to  convey  only  "  the  right,  title  and  inter- 
est "  which  the  judgment  debtor  possessed  or  had  in  the  land 
at  date  of  the  judgment,  yet  the  purchaser  under  such  a  deed 
will  take  the  entire  estate  as  against  prior  unrecorded  deeds  or 
equities  of  which  he  had  no  notice.18  The  title  so  acquired 
may  be  sold  and  conveyed,  even  pending  an  appeal,19  and 
the  reversal  of  the  judgment  for  error,  where  the  court  had 

13  Miller  v.  Wilson,  32  Md.  297;  434;     Bassett    V.    Lockard,    60    111. 

Walke    r.    Moody,    65    N.    C.    599;  164. 

Froot   v.  Bank,  70  N.  Y.  553;   Bar-  18  Harpham  v.  Little,  59  111.  509. 

ron  v.  Mullin,  21  Minn.  374;  Holmes  19  The  issue  of  an  execution  on  a 

V.   Shaver,   78   111.   578;    McCartney  judgment,     pending    an    appeal,    is 

v.  King,  25  Ala.  681.  irregular,  but  not  void,  and  a  sale 

l4Atwood    17.     Wright,    29     Ala.  of  land  under  such  an  execution  is 

346;  Bassett  i\  Loekard,  60  111.  164;  subject  to  be   set  aside,   on  motion 

Hensley  v.  Baker,  10  Mo.  157.  made  in  proper  time  by  the  defend- 

15  Wood  v.  Calvin,  2  Hill  (N.  Y. )  ant,  whose  land  has  been  sold;  but 
566;  Jackson  v.  Anderson,  4  Wend.  no  one  except  the  defendant  in  the 
(N.  Y.)  474;  King  v.  Goodwin,  16  execution  can  question  the  sale  for 
Mass.  63.  irregularity,   however  gross,   and  if 

16  Morgan  v.  Bouse,  53  Mo.  219;  not  so  set  aside,  the  sale  will  pass 
Williams  v.  Amory,  16  Mass.  186.  the  defendant's  interest  in  the  land: 

17  Hicks  v.  Skinner,  71  N.  C.  Shirk  v.  Gravel  Road  Co.,  110  111. 
539;    Cameron    V.    Logan,    8    Iowa,  661. 


JUDICIAL   AND    EXECUTION"    SALES.  561 

jurisdiction  of  the  subject-matter  and  the  parties,20  will  not 
materially  affect  the  purchaser's  rights,  for  it  is  a  settled  prin- 
ciple of  the  common  law,  coeval  with  its  existence,  that  the 
defendant  shall  have  restitution  of  the  purchase  money,  and 
the  purchaser  shall  hold  the  property  sold,  except  where  the 
plaintiff  in  the  judgment  becomes  purchaser,  and  still  holds 
the  title.21  In  this  latter  event  the  title  acquired  under  such 
judgment  is  divested  by  the  reversal.22 

§  474.  When  Title  Vests.  In  all  cases  where  a  redemp- 
tion is  permitted,  the  legal  estate  of  the  judgment  debtor  is 
not  divested  by  the  sale  until  after  the  period  allowed  for 
redemption,  nor  even  then,  unless  the  sale  has  been  consum- 
mated by  a  deed  from  the  sheriff.  Until  the  execution  of  such 
deed  the  title  of  the  purchaser  is  inchoate,  for  by  the  simple 
act  of  purchase  he  acquires  no  legal  estate  in  the  land,  but 
only  a  right  to  an  estate  which  may  be  perfected  by  convey- 
ance.23 Prior  to  the  sheriff's  deed,  the  debtor  is  -entitled  to 
the  possession  and  profits  of  the  land,  while  the  equity  held  by 
the  purchaser  is  a  lien  upon  the  land  for  the  amount  of  his 
bid  and  interest.24 

§  475.  The  Writ.  It  is  a  cardinal  rule  that  the  execu- 
tion must  conform  substantially  to  the  judgment,  or  the  sale 
will  be  void;25  yet  it  is  not  customary  to  more  than  allude 
to  this  instrument  in  the  abstract  of  an  execution  sale,  unless 
special  instructions  are  given  otherwise.  Its  date,  number  and 
import  are  usually  noticed,  and  in  case  of  a  venditioni  ex- 
ponas a  brief  allusion  to  the  lands  specifically  described.  Nor 
will  a  more  extended  notice,  in  most  cases,  be  necessary,  as  the 

20  Feaster  v.  Fleming,  56111.457;  2  3  Smith  r.  Colvin,  17  Barb.  157 
Hobson  r.  Ewan,  62  111.  146.  Evertson  v.  Sawyer.  2  Wend.   507 

21  Fergus   v.   Woodworth,   44   111.  Bowman  v.  The  People,  82  111.  246 
374;  Mansfield  v.  Hoagland,  46  111.  and   see    Rucker    V.   Decker,   49   111. 
359.     In  this  event  the  sale  is  usu-  377. 

ally  void  under  special  statutes:  see  24  Vaughn  r.  Ely,  4  Barb.  159. 

Hutchens   v.   Doe,   3    Ind.    528;    but  25  Crittenden  v.  Leitensdorfer.  35 

compare   Gossom    v.    Donaldson,    18  Mo.  239;   Hightower  V.  Handlin,  27 

B.  Mon.   (Ky.)   230.  Ark.    20;    Hastings    V.    Johnson,    1 

22  Powell  v.  Rogers,   105  111.  318.  Nev.  612. 

36 


562  ABSTRACTS    OF    TITLE. 

purport  and  effect  of  the  writ  are  generally  recited  in  other 
of  the  proceedings  under  it.  Where  an  execution  is  not  signed 
by  the  officer  authorized  to  issue  it,2G  or  where  there  is  an 
insufficient  teste,  as  where  the  seal  of  the  court  is  omitted,27 
or  where  there  is  a  want  of  correspondence  with  the  judgment, 
such  defects  should  be  shown,  as  a  valid  execution  is  one  of 
the  integral  links  in  the  chain  of  title,  but  mere  clerical  vari- 
ance will  not  invalidate,28  nor  afford  ground  for  collateral  im- 
peachment.29 An  execution  issued  and  levied  in  the  name 
of  deceased  plaintiffs,  or  against  deceased  defendants,  will  be 
void  in  some  States,  but  may  be  effectual  in  others,  provided 
certain  statutory  provisions  are  complied  with.30 

§  476.  The  Levy.  A  levy  of  lands  is  made  by  an  indorse- 
ment thereof  upon  the  writ,  there  being  no  such  thing  as  seiz- 
ure of  the  property.  The  sheriff,  when  levying  on  real  estate, 
does  not  disturb  the  possession  of  the  debtor  nor  even  his  right 
of  possession,  and  this  constitutes  the  chief  distinction  between 
a  levy  on  real  estate  and  on  personal  property.31  The  deci- 
sions as  to  what  constitutes  a  valid  levy  are  generally  har- 
monious in  declaring  that  the  land  must  be  described  with 
sufficient  certainty  to  enable  it  to  be  identified  without  other 
evidence,32  but  if  defective  in  this  respect  it  will  be  cured 
by  a  correct  deed.33  In  an  abstract  of  the  sale  it  is  regarded 
as  a  minor  detail,  which  may  be  briefly  noticed  in  the  return 
of  the  execution,  but  the  certificate  and  deed  supply  in  better 

26Rawles    v.    Jackson,     104    Ga.  Riddle  v.  Bush,  27  Tex.  675 ;  Wood- 

593;    Wooters    v.    Joseph,    137    111.  ley  v.  Gilliam,  67  N.  C.  237. 

113.  29  Butler  v.  Haynes,  3  N.  H.  21. 

27  This  has  been  held  a  fatal  de-  30  Hildreth  v.  Thompson.  16 
feet  which  will  invalidate  the  deed:  Mass.  191;  Meek  v.  Bunker,,  33 
Ins.  Co.  v.  Hallock,  6  Wall.  556;  Iowa,  169;  Bowen  v.  Bonner,  45 
Davis     V.     Ransom,     26     111.      100;  Miss.  10. 

Weaver  V.  Peasley,  163  111.  251;  Gor-  31  Dement   v.    Thompson,    80   Ky. 

don  v.  Bodwell,  59  Kan.  51 ;  but  see,  255. 

contra,    Corwith    v.    Bank,    18    Wis.  32  Chadbourne  v.   Mason,   48   Me. 

560.  389;    Gault    V.    Woodbridge,    4    Mc- 

28  Wheaton   v.    Sexton.   4    Wheat.  Lean,  329. 

503;  Jackson  V.  Spink,  59  111.  404;  33  Hopping  V.  Burnam,  2  Greene 

(la.),  39. 


JUDICIAL    AND    EXECUTION"    SALES.  5G3 

shape  the  necessary  information  concerning  it.  "  And,"  ob 
serves  Mr.  Eorer,34  "  though  the  purchaser  relies  on  the  judg- 
ment, execution,  the'  levy  and  the  deed,  yet  when  the  pur- 
chaser at  sheriff's  sale  shows  an  authorized  execution  and  deed, 
a  correct  levy  and  notice  is  presumed.  A  judgment,  execu- 
tion and  deed  from  the  sheriff  are  sufficient  to  support  the 
title  of  a  purchaser  without  proof  of  a  levy,  though  the  return 
be  incorrect,  or  there  be  no  return."  35 

§  477.  Notice  of  Sale.  It  is  a  general  statutory  provision 
that  land  shall  not  be  sold  by  virtue  of  any  execution  except 
at  public  sale,  nor  unless  the  time  and  place  of  holding  such 
sale  shall  have  been  previously  given  by  prescribed  methods. 
These  methods  generally  consist  in  putting  up  written  or 
printed  notices  of  sale  and  by  advertisement  thereof  in  some 
newspaper,  which  notices  must  describe  the  parties,  property, 
terms,  etc.,  and  this  applies  as  well  to  judicial  as  to  execution 
sales.30  This  notice  it  is  well  to  briefly  abstract,  showing 
only  the  legal  requirements  in  a  connected  narrative  form, 
and  when  proof  of  publication  is  appended,  show  this  as  well. 
The  proof  of  publication  is  afforded  by  the  publisher's  affi- 
davit or  certificate  of  same.  The  statutes  requiring  notice  of 
sale  are  said  to  be  directory  merely,  and  failure  to  give  such 
notice  will  not  avoid  the  sale  so  as  to  defeat  the  title  of  an 
innocent  purchaser  not  himself  in  fault ;  37  hence,  a  passing 
allusion  sufficient  to  show  its  purport,  seems  all  that  is  neces- 
sary in  regard  to  the  notice.38  In  the  general  synopsis  of  sale 
it  may  be  mentioned  in  this  manner: 

34  Rorer  Jud.  and  Ex.  Sales,  292,  See  Lis  Pendens  and  Attach- 
citing    Brooks    v.    Rooney,    11    Ga.       ments. 

42:5;   Hopping  v.  Burnam,  2  Greene,  36  Oleott    V.    Robinson,    20    Barb. 

39;  Evans  v.  Davis,  3  B.  Mon.  344;  148. 

McEntire    v.    Durham,    7     Ired.    L.  37  Freem.    Ex.    §    284.      Witb    re- 

151 ;     Jackson    v.    Young,     5    Cow.  gard  to  probate  sales  a  more  strict 

269;   Phillips  v.  Coffee,   17  111.   154.  rule  seems  to  prevail  and  notice  is 

35  Levy  on  attachment  is  gov-  bold  essential:  Blodgett  r.  Hitt,  29 
fined  by  different  principles,  and  a  Wis.  169;  Mountour  v.  Purdy,  11 
Eeturn  or  certificate  filed  is  of  vital  Minn.  384. 

importance  in   preserving  the   lien:  38  Defective  notice  does  not  ren- 


564 


ABSTKACTS    OF    TITLE. 


Printed  copy  of  notice  of  sale,  gives  title  of  court  ana  cause, 
describes  the  said  premises,3®  and  fixes  on  Sept.  7,  1881,*°  at 
11  o'clock  a.  m.,41  at  the  east  door  of  the  Court  House,42  Chi- 
cago, III.,  and  for  cash,  as  the  time,  place  and  terms  of  said 
sale. 

§  478.  Proof  of  Publication.  Appended  to  the  notice 
of  sale  will  usually  be  found  an  affidavit  or  certificate  by  the 
publisher  of  a  newspaper,  to  the  effect  that  the  notice  was 
duly  published  according  to  law,  and  this  affidavit  or  certificate 
it  is  well  to  show  in  brief  terms.  Its  material  points  may  be 
noted  as  follows: 


Appended  to  the  foregoing  is, 

Subscribed  and  sworn  io,  June 
1,  1883. 

Recites,  that  a  notice  "  of 
which  the  annexed  printed  slip  is 
a  true  copy,"  was  duly  published 
in  the  Chicago  Legal  Neivs,  a 
weekly  newspaper  of  general  circulation,  printed  and  published 
in    Cook    County,    III.,    for    the    period    of    three    successive 


Affidavit 
by 
Myra  Bradwell,  President 
of    the    Chicago    Legal 
News   Co. 


der  the  sale  void,  or  even  voidable 
unless  the  purchaser  has  notice  of 
the  irregularity.  Purchasers  in 
good  faith  can  not  be  affected  by 
such  non-compliance  with  the 
statute:  Osgood  v.  Blackmore,  59 
111.  261;  Watt  v.  McGalliard,  67 
111.    513.     . 

39  A  minute  description  is  not 
necessary  provided  what  is  given  is 
correct  and  sufficiently  identifies  the 
property  to  enable  the  public  to 
understand,  by  the  exercise  of  ordi- 
nary intelligence,  what  is  to  be 
sold:  Stevens  v.  Bond,  44  Md.  506; 
Collier  v.  Vason,  12  Ga.  440;  Allen 
V.  Cole,  9  N.  J.  Eq.  286. 

40  The   date    of   sale    is   material 


and  destroys  the  validity  of  the 
notice  if  of  such  a  character  as  to 
mislead  the  public:  Fenner  v.  Tuck- 
er, 6  R.  I.  551. 

41  If  the  notice  does  not  name  the 
exact  hour  at  which  the  sale  is  to 
be  held,  it  should  name  the  hours 
between  which  it  will  take  place, 
which  will  be  sufficient  if  the  hours 
named  belong  to  the  business  hours 
of  the  day:  Cox  v.  Halsted,  2  N.  J. 
Eq.  311;  Burr  v.  Borden,  01  111. 
388.  A  failure  to  state  some  time 
renders  the  notice  insufficient : 
Trustees  v.  Snell,  19  111.  156. 

42  The  designation  of  a  place  of 
sale  is  an  essential  requisite  of  the 
notice,  without  which  it  is  in  law 


JUDICIAL    AND    EXECUTION    SAEES.  565 

weeks; 43  that  the  date  of  the  first  publication  icas  Jan.  6, 
18S3; 44  that  the  date  of  the  last  publication  was  Jan.  20, 
1883.45 

A  certificate  of  publication  under  the  statute  is  sufficient  if 
it  shows  a  substantial  compliance  therewith,  but  the  essential 
requisites  must  appear;  such  affidavit  or  certificate  may  prop- 
erly be  likened  to  the  return  of  an  officer,  and  like  such  return 
should  show  all  jurisdictional  facts. 

A  defect  in  the  certificate  of  publication,  in  not  stating  the 
first  and  last  days  of  the  publication,  has  been  held  to  be  cured 
by  a  recital  in  the  decree  that  "  it  appearing  to  the  court  that 
notice  according  to  law  was  given,"  etc.,  the  presumption  be- 
ing that  the  court  received  other  evidence  than  the  certificate, 
of  the  date  of  the  publication.46  It  must  be  observed  further, 
that  the  certificate  or  affidavit  of  publication  can  only  be  made 
by  the  publisher  or  his  authorized  agent,47  and  a  certificate 
signed  "  John  "Wentworth,  publisher,  by  Reed,"  has  been  held 
insufficient.48  In  this  instance  the  certificate  did  not  purport 
to  be  given  by  the  publisher,  but  by  another  person  who  used 

no    notice   whatever:     Bottineau   v.  one  days  do  not  elapse  from  first  in- 

Ins.  Co.,  31  Minn.   125;   Blodgett  V.  sertion   to   day   of   sale,   Pearson  v. 

Hitt,  29  Wis.   169.  Bradley,   48    111.   250.      Where   this 

43  The  number  of  times,  or  pe-  fact  appears,  however,  counsel 
riod  of  time,  the  notice  was  pub-  should  notice  it  in  his  opinion,  if 
lished,  and  the  date  of  the  first  and  the  statute  requires  twenty  days' 
last  issues  containing  same,  are  in-  notice. 

dispensable    to    its    validity:     Bey-  46  Moore    V.    Neil,     39    111.    256. 

geh  v.  Chicago,  65  111.  189.  The   foregoing  example,   though   in- 

44  It  may  be  well  to  observe  that  serted  in  connection  with  execution 
the  date  of  publication  does  not  sales,  is  that  also  employed  in  all 
fall  on  Sunday  as  this  would  in-  decretal  sales  as  well,  either  in 
validate  the  notice:  Smith  v.  Wil-  chancery  or  in  probate,  and  must 
cox,  24  N.  Y.  353;  Scammon  V.  be  shown  in  the  same  manner  in  ex- 
Chicago,  40  111.   146;   Shaw  V.  Wil-  positions   of   such   sales. 

liams,   87    Ind.   158.  47  This  matter  is  statutory;   usu- 

45  It  would  seem  that  the  statute  ally  the  proof  of  publication  must 
is  satisfied  if  there  are  three  differ-  be  made  by  the  "  printer  or  pub- 
ent   insertions   in   as    many   weekly  lisher." 

issues  before  sale,  although  twenty-  48  Fox  v.  Turtle,  55  111.  377. 


566  ABSTRACTS    OF    TITLE. 

the  publisher's  name  but  failed  to  show  his  own  authority. 
Where  a  newspaper  is  published  by  a  firm  or  by  a  corporation, 
a  certificate  by  one  of  the  partners,  or  by  an  officer  of  the  cor- 
poration, wThen  such  certificate  shows  the  official  connection  of 
the  person  making  it  with  the  newspaper,  will  usually  be  suffi- 
cient.49 

§  479.  Execution  Sale  as  Affected  by  Death.  The 
death  of  a  plaintiff  after  judgment  and  before  execution  issued 
is  of  comparatively  little  moment  in  respect  to  title,  as  his  per- 
sonal representatives  may  sue  out  execution  in  the  name  of 
such  deceased  plaintiff,  or  in  their  official  capacity,  as  the 
statute  may  direct.50  If  the  defendant  dies  after  judgment, 
the  plaintiff  may  sue  out  execution  in  the  mode  prescribed  by 
statute,  or,  if  permissible,  proceed  by  the  common  law  scire 
facias.  But,  in  the  event  of  the  death  of  either  party  prior 
to  execution,  to  render  valid  a  sale  under  the  judgment  it  should 
be  revived  by  scire  facias,  or  an  execution  must  be  sued  out 
in  the  mode  prescribed  by  statute,  which  usually  provides  for 
the  filing  or  recording,  in  the  court  in  which  the  judgment  ex- 
ists, of  the  letters  testamentary  or  of  administration,  after 
which  execution  may  issue  and  proceedings  be  had  thereon,  in 
the  name  of  the  executor  or  administrator.51 


49  Fox  V.  Turtle,  55  111.  377.  It  32G ;  Brown  v.  Parker,  15  111.  307. 
would  seem  to  be  the  rule  in  some  In  this  case  a  sheriff's  deed  was  re- 
States,  that  when  the  affidavit  of  lied  on  for  title.  The  execution 
publication  is  defective,  an  amended  under  which  the  sale  was  made 
affidavit  may  be  filed  according  to  was  not  issued  until  several  years 
the  truth  of  the  case:  Bunce  v.  after  the  death  of  the  judgment 
Reed,  16  Barb.  347.  creditor,   without   first  reviving  the 

50  It  is  a  familiar  provision  of  the  judgment  in  favor  of  the  personal 
statute  that  liens  created  by  law  do  representative,  or  recording  in 
not  abate  by  reason  of  the  death  of  court  his  letters  of  administration, 
any  plaintiff  or  plaintffs,  but  that  and  was  also  issued  in  the  name  of 
same  shall  survive  in  favor  of  the  the  deceased  plaintiff,  and  not  in  the 
executor  or  administrator,  whose  name  of  his  personal  representa- 
duty  it  shall  be  to  have  the  judg-  tive.  Held,  that  the  execution,  and 
ment  enforced :  Durham  V.  Hea-  all  proceedings  under  it,  were  abso- 
ton,  28  111.  264.  lutely  void. 

51  Scammon  v.   Swartout,   35  111. 


JUDICIAL    AND    EXECUTION    SALES.  567 

§  ISO.  Exemptions.  Though  all  the  real  estate  of  a 
judgment  debtor  may  be  primarily  liable  to  seizure  and  sale 
on  execution,  a  statutory  right  has  been  given  to  him  in  every 
State,  to  relieve  a  portion  of  same  from  this  burden,  but  the 
vxcreise  of  this  right  is  largely  dependent  on  intention.  When, 
therefore,  title  is  claimed,  or  sought  to  be  adduced  through 
the  medium  of  an  execution  sale,  and  the  abstract  furnishes 
no  information,  it  would  seem  that  an  inquiry  should  be  made 
concerning  the  status  of  the  land  with  reference  to  the  statu- 
tory right  of  exemption.  The  debtor  is  not  always  obliged  to 
assert  his  right  at  the  time  of  the  levy,  neither  will  a  subse- 
quent sale  impair  same,  and  the  question,  when  such  a  state 
of  facts  may  exist  under  the  statute,  becomes  of  controlling  im- 
portance. A  sale  of  the  homestead  under  execution  being  in- 
operative, the  purchaser  thereat  takes  no  title.52 

§  481.  Dower  rights.  It  must  always  be  borne  in  mind, 
while  making  searches  of  the  character  now  under  considera- 
tion, that  a  sale  made  in  pursuance  of  a  judgment  affects  only 
the  title  of  the  parties  to  the  suit.  To  the  great  majority  of 
judgments  at  law  the  wives  of  the  defendants  are  not  made 
parties,  and  it  necessarily  follows,  in  such  a  case,  that  an 
execution  sale  of  the  husband's  land  does  not  extinguish  the 
wife's  right  of  dower.53  Therefore,  whenever  title  is  derived 
through  a  sale  of  this  kind,  and  the  records  fail  to  disclose  any- 
thing respecting  the  domestic  condition  of  the  judgment  debtor, 
an  inquiry  is  raised  and  a  requisition  for  further  information 
should  be  made. 

§  482.  Judicial  Sales  —  Validity  and  Effect.  A  sale 
of  land  under  a  decree,  must  be  made  in  the  manner  and  on 
the  terms  prescribed  in  such  decree ;  54  and  a  confirmation  by 
the  court  of  the  report  of  the  officer,  can  not,  it  seems,  cure 
the  invalidity  of  a  sale  not  so  made.55  But  a  sale  will  not 
be  disturbed  unless  the  party  suing  can  show  an   injury  re- 

52Conklin  r.  Foster.  57   111.   104.       380;  Augustine  V.  Doud,  1  111.  App. 

53  Butler    r.    Fitzgerald,    43    Neb.       588. 

192;    Dayton    v.    Corser,    51    Minn.  55  Bethel      v.      Bethel.     6       Bush 

406;   Ficklin   v.  Rixey,  89  Va.   832.        (Ky.),  65;  but  this  will  only  apply 

54  Langsdale    v.    Mills,    32    Ind. 


568 


ABSTEACTS    OF    TITLE. 


suiting  to  him  therefrom,50  as  well  as  an  interest  in  the  subject- 
matter,57  while  it  is  always  the  policy  of  the  law  to  uphold 
judicial  sales,  and  to  protect  the  rights  of  purchasers  under 
them ;  58  and  although  the  judgment  or  decree  may  be  reversed, 
yet  all  rights  acquired  at  a  judicial  sale  while  the  decree  or 
judgment  was  in  force,  and  which  it  authorized,  will  be  pro- 
tected. It  is  sufficient  for  the  buyer  to  know  that  the  court 
had  jurisdiction  and  exercised  it,  and  that  the  order  on  the  faith 
of  which  he  purchased  was  made,  and  authorized  the  sale,59 
for  where  the  court  has  jurisdiction  of  the  parties,  and  of  the 
subject-matter  of  the  litigation,  no  matter  how  erroneously  it 
may  thereafter  proceed,  within  the  bounds  of  its  jurisdiction, 
its  decree  will  be  conclusive  until  reversed  or  annulled  in  some 
direct  proceeding,60  and  the  title  to  property  acquired  at  a  sale 
under  such  decree,  by  a  stranger  to  the  record,  will  be  upheld, 
although  the  decree  itself  may  afterward  be  reversed  for  mani- 
fest error.61 

On  the  other  hand  it  must  be  remembered  that  the  rule  of 
caveat  emptor  applies  to  all  judicial  sales,62  and  one  who  pur- 
chases thereat  must,  for  his  own  protection,  always  exercise  that 
reasonable  caution  and  vigilance  which  the  rule  exacts.  It  is 
of  the  utmost  importance,  therefore,  that  in  the  examination 
of  a  title  depending  on  a  judicial  sale  every  essential  step  of 


to  gross  departures;  mere  irregular- 
ity is  generally  cured  by  confirma- 
tion: Williamson  v.  Berry,  8  How. 
546;  Koehler  v.  Ball,  2  Kan.  160. 
Void  sales,  whether  execution  or  ju- 
dicial, are  classed  by  Mr.  Freeman, 
as  (1)  those  which  are  void  because 
the  court  had  no  authority  to  enter 
the  judgment  or  order  of  sale;  (2) 
those  which,  though  based  on  a 
valid  judgment  or  order  of  sale,  are 
invalid  from  some  vice  in  the  subse- 
quent proceedings :  Freeman  Void 
Jud.  Sales,  15. 

56  Matter  of  Gilmer,  21  La.  Ann 
589. 


57  Nixon  v.  Cobleigh,  52  111.  387. 

58  Dorsey  V.  Kendall,  8  Bush 
(Ky.),  294;  Allman  v.  Taylor,  101 
111.  185;  Norton  v.  Reardon,  67  Kas. 
302. 

59  Gray  v.  Brignardello,  1  Wall. 
627;  Fergus  v.  Woodwort'h,  44  111. 
374. 

60  Norton  v.  Reardon,  67  Kas. 
302;  Noland  v.  Barrett,  122  Mo. 
181;  Bland  v.  Muncaster,  24  Miss. 
62. 

61  Allman  v.  Taylor,  101  111.  185. 

62  Holmes  v.  Shaver,  78  111.  578- 


JUDICIAL    AND    EXECUTION    SALES.  569 

the  transaction  should  be  carefully  scrutinized  and  the  facts  of 
jurisdiction  established. 

§  483.  Title  under  Judicial  Sale.  The  title  acquired 
under  a  sale  by  order  of  the  court  differs  in  no  material  respect 
from  that  obtained  where  the  sheriff  is  the  vendor.  The  pur- 
chaser is  entitled  to  the  interest  of  all  the  parties  to  the  suit, 
and  to  the  interest  of  those  who  have  purchased  pendente  lite 
from  any  of  the  parties.63  But  he  acquires  no  new  rights,  nor 
does  the  fact  that  the  court  is  regarded  as  the  vendor64  confer 
upon  him  any  superior  equities.  A  court  does  not  insure  the 
title  to  real  property  sold  under  its  decrees,65  and  the  purchaser 
buys,  presumably,  with  full  knowledge  of  all  defects  and  pre- 
existent  liens.66  He  is  charged  with  notice  of  all  facts  disclosed 
by  the  record  which  affect  the  rights  of  others  in  the  property 
sold,67  and  he  is  bound  to  examine  the  title  or  purchase  at  his 
peril.  If  he  buys  without  an  examination  and  obtains  no  title, 
he  must,  as  a  general  rule,  suffer  the  loss  arising  from  his  neg- 
lect, unless  fraud  or  mistake  has  entered  into  the  transaction.68 
Prior  to  confirmation  he  has  no  independent  rights,  but  is  re- 
garded as  a  mere  proposer ;  69  after  confirmation  his  rights  be- 
come vested,  and  the  sale  will  not  be  set  aside  except  for  fraud, 
mistake,  surprise,  or  other  cause  for  which  equity  would  give 
'  relief  if  the  sale  had  been  made  by  the  parties  in  interest  instead 
of  by  the  court.70  Neither  will  the  title  of  an  innocent  pur- 
chaser, a  stranger  to  the  record,  be  affected  by  the  subsequent 

63  Harryman  V.  Starr,  56  Md.  63.  ce  Housley  v.  Lindsay,   10  Heisk. 

64  In  all  sales  made  under  the  au-  (Tenn.)  651;  Guynn  v.  McCauley, 
thority  of  a  decree  in  equity,  the  32  Ark.  97;  Capehart  v.  Dowery,  10 
court  is  the  vendor,  and  the  com-  W.  Va.  130;  Watson  V.  Hoy,  28 
missioner    making    the    sale    is    the  Gratt.    (Va.)    698. 

mere  agent  of  the  court.     The  de-  67  Williamson  v.  Jones,  43  W.  Va. 

cree  is  the  warrant  of  authority  to  562;  Meacham  v.  Steele,  93  111.  135. 

sell:   Parrat  V.  Neligh,  7  Neb.  546;  68  Tilley  v.  Bridge?,   105  111.   336. 

Thompson    v.    Craighead,    32    Ark.  69  State  v.  Roanoke  Nav.  Co.,  86 

291.  N.  C.  408. 

65Gunton  v.  Zantzinger,  3  Mac-  70  Berlin  v.  Melhorn,  75  Va.  639. 
Arthur  (D.  C),  262. 


570  ABSTRACTS    OF    TITLE. 

reversal  of  the  decree  for  irregularity ;  71  but  where  the  pur- 
chaser was  an  original  plaintiff  in  the  suit,  or  an  assignee  of  the 
judgment  or  decree,  he  acquires  only  a  defeasible  title,  which 
may  be  defeated  by  a  subsequent  reversal,  and  the  same  rule  ob- 
tains whether  the  reversal  is  based  on  an  amendable  defect  or 
one  that  is  incurable.72 

§  484.  Rights  of  Purchaser.  A  purchaser  at  a  judicial 
sale  has  a  right  to  presume  that  it  is  conducted  according  to 
the  provisions  of  law,73  and  proceedings  in  court,  in  a  matter 
in  which  it  has  jurisdiction,  will  be  presumed  to  be  regular. 
Hence,  a  purchaser,  at  a  sale  made  by  order  of  such  court,  is 
not  bound  to  look  further  back  than  the  judgment  or  decree, 
and  the  legal  effect  it  may  have  on  the  title  which  is  the  subject 
of  inquiry.74  Such  judgment  is  a  complete  protection  to  a 
purchaser  under  it,75  except  as  to  matters  which  reach  the  juris- 
diction of  the  court.  Neither  is  he  bound,  in  any  case,  to  see 
to  the  application  of  the  purchase  money,  for  this  is  under  the 
control  of  the  court ;  and  however  unwise  the  disposition  may 
be,  his  title  will  not  be  affected  by  it.76 

§  485.  Compelling  Purchaser  to  take  Title.  A  sale 
made  by  order  of  a  court  of  equity  is,  until  final  ratification, 
an  executory  contract,  open  to  objection,  and  not  to  be  enforced 
if  the  enforcement  would  be  inequitable  and  against  good  con- 
science.77 A  purchaser  can  not  be  compelled  to  accept  a  doubt- 
ful title.  A  title  is  doubtful  when  its  condition  invites  litiga- 
tion. When  doubts  are  raised  by  extrinsic  circumstances, 
which  neither  the  purchaser  nor  the  court  can  satisfactorily  in- 
vestigate, for  want  of  means  to  do  so,  the  court  will  refuse  to 

71  Sutton  v.  Schonwald,  86  N.  C.  421;  Dugan  v.  Follett,  100  111.  581; 
198;    Barlow    V.    Stanford,    82    111.  Allman  v.  Taylor,  101  111.  185. 
298.  7  5Hening  v.  Punnett,  4  Daly  (N. 

72  McDonald  v.  Life   Ins.  Co.,  65  Y.),  543. 

Ala.    358;    Fishbaek   v.   Weaver,   34  76  Knotts    v.    Stearns,    91    U.    S. 

Ark.    569;    McLagan  v.   Brown,    11  638. 

111.  519.  77  Hunting    v.     Walter,    33    Md. 

73  Browning  v.  Howard,  19  Mich.  60;  Ormsby  v.  Terry,  6  Bush  (Ky.), 
323.  553;    Mullins  v.     Aiken,  2     Heisk. 

74  Fleming   v.    Johnson,    26   Ark.  (Tenn.)    535. 


JUDICIAL    AND    EXECUTION    SALES.  571 

impose  such  title  on  the  purchaser.  When  the  means  of  inquiry 
are  offered,  and  the  result  is  satisfactory,  performance  will  be 
enforced.78  But  all  objections  must  be  made  before  the  sale  is 
confirmed,79  for  after  confirmation  no  relief  will  be  granted  to 
the  purchaser  upon  the  ground  of  defect  of  title ;  80  he  can  not 
have  a  rebate  of  price  on  discovering  liens  unknown  to  him  be- 
fore confirmation,81  and  even  though  the  title  he  may  procure 
from  the  court  may  be  worthless,  he  can  not  be  relieved  from 
payment  of  the  price.82  A  purchaser  can  not,  after  confirma- 
tion, set  up,  as  a  ground  of  relief  against  his  purchase,  facts 
known  to  him  before  it  was  completed ;  83  and  one  who  buys 
without  inquiry  or  examination  will  not  be  relieved  because  of 
a  misapprehension  as  to  the  legal  effect  of  the  decree  for  sale 
and  the  character  and  extent  of  the  title  he  will  acquire;  such 
mistake  being  a  mistake  of  law,  and  due  to  the  carelessness  of 
the  purchaser  himself.84 

§  486.  Order  of  Confirmation.  After  the  sale,  and  be- 
fore the  execution  of  a  conveyance,  in  all  cases  of  judicial  sales, 
and  sometimes  of  execution  sales  as  well,85  a  return  or  report 
of  sale  must  first  be  made  to  the  court  which  ordered  the  same, 
which  upon  examination  approves  and  confirms  the  action  of 

78  Kostenboder  v.  Spotts,  80  Pa.  parties :  Long  v.  Weller,  29  Gratt. 
St.  430;  Monaghan  v.  Small,  6  (Va.)  347.  And  see  Berlin  v.  Mel- 
Rich.   (S.  C.)   177;  Graham  v.  Blea-       horn,  75  Va.  639. 

kie,  2  Daly  (N.  Y.),  55.  si  Farmers'    Bank    v.    Peter,     13 

79  Long  V.  Weller,  29  Gratt.  Bush  (Ky.),  591 ;  Curtis  v.  Root,  28 
(Va.)    347.  111.  367. 

80  Farmers'  Bank  v.  Peter,  13  82  Capehart  v.  Dowery,  10  W.  Va. 
Bush  (Ky.),  591.  But  the  general  130,  and  see  Dills  v.  Jasper,  33  111. 
rule,  that  objections,  by  purchasers,  263. 

to  judicial  sales,  for  defects  of  title,  83  Spence    v.    Armour,    9    Heisk. 

must  be  made  before  the  sale  is  con-  (Tenn.)    167. 

firmed  by  the  court,  and  that  objec-  84  Hayes  V.   Stiger,  29  N.  J.   Eq. 

tions  afterward  come  too  late,  does  196;   Morris  v.   Hogle,  37  111.   150; 

not  apply  to  the  equity  of  a   pur-  Johnson  v.  Baker,  38  111.  98. 

chaser  arising  from  after  discovered  85  Confirmation        of       execution 

mistakes,  fraud,  or  other  like  mat-  sales    is    not   necessary   at   common 

ter:     Watson    v.    Hoy,     28     Gratt.  law,   but   is   sometimes   rendered   so 

(Va.)  698.     But  if  mistake  is  relied  by  statute, 
on  it  must  be  the  mistake  of  both 


572  ABSTRACTS    OF    TITLE. 

the  officer  who  made  the  sale.80  Until  this  has  been  done  the 
sale  is  incomplete,  and  confers  no  rights  on  the  purchaser.87 
In  judicial  sales  a  confirmation  is  rendered  necessary  from  the 
fact  that  the  court,  and  not  the  officer  making  the  sale,  is  the 
vendor,  and  confirmation  is  regarded  as  the  final  consent;  but 
even  where  there  has  been  no  confirmation,  if  a  deed  has  been 
made  and  delivered,  and  there  has  been  a  possession  and  hold- 
ing thereunder,  time  may,  if  sufficiently  long,  operate  to  con- 
firm and  ratify  the  sale,  and  perfect  the  title  of  the  purchaser.88 

Where  an  abstract  of  judicial  proceedings  culminating  in  a 
sale  and  conveyance,  is  shown,  the  order  of  confirmation  is  ma- 
terial, and  if  wanting,  the  apparent  defect  should  be  noted  by 
counsel  and  proper  inquiries  made  regarding  same. 

§  487.  Effect  of  Confirmation.  An  order  confirming  a 
sale  of  land,  made  by  a  court  having  jurisdiction  of  the  parties 
and  the  subject-matter,  is  a  final  and  conclusive  determination 
of  all  matters  passed  upon  or  which  might  have  been  passed 
upon  had  they  been  presented  by  way  of  objection.  It  binds  all 
of  the  parties  and  their  privies  and  forever  precludes  any  at- 
tack upon  the  sale  except  for  fraud,  mistake,  surprise,  or  some 
other  circumstance  for  which  equity  would  give  relief  if  the 
sale  had  been  made  by  the  parties  in  interest  instead  of  by  the 
court.89     So,  too,  as  the  order  of  confirmation  is  practically 

86  A  sale  of  land  under  a  decree  ordered  to  make  a  deed,  no  order 
will  not  be  approved  by  a  court  if  confirming  the  deed  is  necessary: 
fraud  or  misconduct  on  the  part  of  McHany  v.  Schenk,  88  111.  357. 
any  of  the  parties  to  the  sale  is  88  Gowan  v.  Jones,  18  Miss.  164; 
shown.  Barling  v.  Peters,  134  111.  Eorer  on  Jud.  and  Ex.  Sales,  57. 
609.  In  such  an  event,  however,  the  deed 

87  Busey  V.  Hardin,  2  B.  Mon.  would  be  regarded  only  as  color  of 
(Ky. )  407;  Bank  v.  Humphreys,  47  title  in  connection  with  adverse  pos- 
111.    227;    Williamson    v.    Berry,    8  session. 

How.    547;     Thorn    v.    Ingram,    25  89  Kincaid  V.   Tutt,   88   Ky.   392; 

Ark.   52;   Valle  V.  Fleming,  19  Mo.  Berlin    v.    Melhorn,    75    Va.    639; 

454;    Hunting    v.    Walter,    33    Md.  Brown  v.  Gilmor,  8  Md.  322;  Speck 

60.     Approving  the  sale  makes  the  V.  Pullman  Co.,  121   111.  33;   Willis 

officer's   act  that   of  the   court,  and  v.  Nicholson,  24  La.  Ann.  545. 
where,   upon    such    approval,   he   is 


JUDICIAL    AND    EXECUTION"    SAEES.  573 

a  final  judgment  it  lias  the  effect  of  curing  all  irregularities  in 
the  proceedings  leading  up  to  the  sale.90 

But,  while  the  order  of  confirmation  cures  all  irregularities 
in  the  mode  of  making  the  sale  it  adds  nothing  to  the  authority 
of  the  officer  who  made  it.  If  the  sale  was  without  authority, 
the  ratification  of  it  by  the  court  must  be  considered  as  having 
been  given  inadvertently,91  or,  if  given  deliberately  and  on  a 
full  examination  of  the  facts,  must  still  be  regarded  as  an  unau- 
thorized proceeding.92  So,  too,  where  the  court  has  exceeded 
its  jurisdiction  in  ordering  the  sale,  a  confirmation  would  have 
no  effect,  for  the  sale  being  void,  there  was  no  subject-matter 
upon  which  the  order  of  confirmation  could  act.  If  the  court 
had  no  jurisdiction  to  order  the  sale,  it  had  none  to  confirm  it, 
for  where  there  is  no  power  to  render  a  judgment  or  to  make 
an  order,  there  can  be  none  to  confirm  or  execute  it.93  But 
where  these  questions  do  not  arise  it  is  presumptive  evidence 
that  the  sale  was  regularly  and  properly  made,  and  questions 
arising  under  it  can  not  be  presented  collaterally.94 

§  488.  Certificate  of  Sale.  Where  a  contract  for  the  sale 
of  land  is  executory  on  both  sides,  it  is  necessary  that  it  should 
be  evidenced  by  a  memorandum  in  writing,  signed  by  the  ven- 
dor, and  sheriff's  sales  form  no  exception  to  the  general  rule.95 
The  usual  method  is  to  execute  a  certificate  of  sale.  If  no  cer- 
tificate or  deed  is  given  to  the  purchaser,  and  no  memorandum 
of  the  sale  is  made  on  striking  off  the  property,  it  has  been  held 
that  the  sale  can  not  be  enforced,  even  though  the  purchase 
money  is  paid,  and  the  sheriff  afterward  makes-  due  return  of 

90  Thorn  v.  Ingram,  25  Ark.  53;  03  Townsend  v.  Tallant,  33  Cul. 
O'Brien  v.  Gaslin,  20  Neb.  347;  54;  Hawkins  v.  Hawkins,  28  Ind. 
Koehler  v.  Ball,  2  Kan.  172;  Hoteh-  70;  Bethel  v.  Bethel,  6  Bush  (Ky.), 
kiss  v.  Cutting,  14  Minn.  537;  Con-  65. 

over  v.  Musgrove,  68  111.  58.  94  Crowell     v.    Johnson,    2     Neb. 

91  Wills  v.  Chandler,  1  McCrary  146;  Matthews  v.  Eddy,  4  Oreg. 
(C.  Ct.),  276.  Hickenbotham  V.  225;  Eaton  v.  White,  18  Wis.  517. 
Blackledge,  54  111.  310.                  .  Speck   v.   Pullman  Co.,   121    111.   33. 

92  Shriver's    Lessee    v.    Lynn,     2  95  Ruckle    V.    Barbour,    48     Ind. 
How.  60,  and  see  Jacobus  V.  Smith,  274;  Evans  v.  Ashley,  8  Mo.  177. 
14  111.  359. 


574  ABSTRACTS    OF    TITLE. 

the  sale.*6  But  this  is  an  extreme  view.  The  sheriff,  in  mak- 
ing sales,  acts  as  the  legal  agent  and  representative  of  the  plain- 
tiff and  defendant  in  the  judgment,  and  of  the  accepted  bidder 
at  the  execution  sale,  and  he  has  the  right  to  bind  all  the  parties 
by  his  memorandum.  This,  it  seems,  he  may  do  by  his  return 
on  the  execution ;  97  his  return  of  the  facts  attending  the  pur- 
chase, made  at  the  time  of  the  sale,  taking  the  case  out  of  the 
statute  of  frauds,98  and  binding  all  parties  by  an  enforceable 
executory  contract.  It  is  no  part  of  the  office  of  a  sheriff's  re- 
turn, however,  to  show  what  land  is  sold  on  execution,  the  prov- 
ince of  a  return  being  to  show  the  satisfaction  or  part  satisfac- 
tion of  the  judgment,  or  failure  to  make  satisfaction  thereof, 
and  the  particulars  of  the  sale,  subject-matter,  consideration, 
purchase,  etc.,  are  best  shown  by  the  certificate  of  purchase  or 
by  the  recitals  in  the  sheriff's  deed.99 

Deeds  do  not  issue  immediately  upon  execution  sales,  and,  in 
many  cases,  judicial  sales  as  well,  but  a  reasonable  time  is  al- 
lowed during  which  the  judgment  debtor  may  redeem  the  prop- 
erty upon  payment  of  the  judgment,  costs,  charges,  etc.,  and  a 
certificate  stating  the  facts  is  issued  to  the  purchaser  at  the 
time  of  the  sale.1  A  duplicate  of  this  certificate  is  recorded  by 
the  officer  in  the  registry  of  deeds,  and  the  certificate,  duplicate, 
or  record  of  same,  is,  by  law,  made  evidence  of  the  facts  therein 
stated.     In  case  of  redemption,  as  provided  by  law,  a  certificate 

96  Gossard  v.  Ferguson,  54  Ind.  Ala.  503.  And  in  some  States  they 
519;  but  see  Sanborn  V.  Chamber-  are  held  to  be  not  within  the  statute 
lin,  101  Mass.  409.  at  all:   Fulton  v.  Moore,  25  Pa.  St. 

97  Warehouse    Co.    v.    Terrill,    13  408;   Halleck  v.  Guy,  9  Cal.  181. 
Bush      (Ky.),      463;      Sanborn      v.  99  Gardner    v.    Eberhart,    82    111. 
Chamberlin,    101    Mass.    409;    Rem-  316. 

ington  v.  Linthicum,  14  Pet.  92.  l  The   legal    effect   of   the   certifi- 

98  It  is  a  prevailing  rule,  how-  cate  is  to  evidence  the  lien  of  the 
ever,  that  after  confirmation  judi-  purchaser  upon  the  lands,  for  the 
cial  sales  are  not  Avithin  the  statute  amount  of  his  bid  and  interest, 
of  frauds;  Bozza  r.  Rowo,  30  111.  during  the  period  allowed  for  re- 
198;  Fire  Ins.  Co.  v.  Loomis,  11  demption:  Vaughn  v.  Ely.  4  Barb. 
Paige,  431 ;  Steward  ?\  Garvin,  31  156,  and  see  Evertson  v.  Sawyer,  2 
Mo.    36;    Hutton    v.    Williams,    36  Wend.  507. 


JUDICIAL    AND    EXECUTION    SALES.  575 

of  redemption  is  issued  and  recorded  in  like  manner.  The  cer- 
tificate of  sale  made  by  the  sheriff  is  sufficiently  shown  as  fol- 
lows. 


Seth  Hanchett,  Sheriff 

of  Cook  Co.,  Ills., 

to 

Hiram  Smith. 


Certificate  of  sale. 

Dated  March  1,  1882. 

Recorded  March  2,  1882. 

Book  200,  page  210. 

Said  Sheriff  (by  deputy)  2  cer- 
tifies that  by  virtue  of  a  certain  (alias,  pluries,  etc.)  writ  of  exe- 
cution to  him  directed  from  the  Superior  Court  of  Cook  County, 
issued  on  a  judgment  rendered  at  the  November  Term,  1881, 
of  said  court,  in  favor  of  William  Thompson,  plaintiff,  against 
Thomas  Jones,  defendant,  for  $1,000.00  and  costs,  dated  Febru- 
ary 1,  1882,  he  did  on  March  1,  1882,  at  10  o'clock  A.  M.,  at 
the  front  door  of  the  court  house  in  the  city  of  Chicago  (the 
time  and  place  aforesaid  having  been  duly  advertised  according 
to  law),  sell  at  public  vendue  all  right,  title  and  interest  of  said 
defendant  in  and  to  [here  set  out  the  description  as  found  in 
the  certificate]  to  Hiram  Smith  for  $1,035.00,  said  sum  being 
the  highest  and  best  bid  offered  for  said  tract  or  lot  of  land, 
the  same  having  been  first  offered  in  separate  tracts  or  lots 
without  receiving  any  bid  or  bids  therefor  or  for  any  part  there- 
of, and  the  purchaser  will  be  entitled  to  a  deed  of  the  premises 
so  sold  on  March  1,  1883,  unless  the  same  shall  be  redeemed  as 
provided  by  law. 

As  has  been  seen,  where  lands  are  sold  by  order  of  court,  al- 
though the  sheriff  is  a  proper  person  to  make  the  sale,  the  court 
has  discretionary  power  to  appoint  a  commissioner,  master  in 
chancery,  or  other  officer  of  the  court,  or  any  fit  and  proper  per- 
son to  make  it.  Sales  made  by  a  commissioner  or  master,  under 
the  direction  of  a  court  of  chancery,  do  not  stand  in  all  respects 
on  a  footing  with  sales  made  by  the  sheriff  under  an  execution. 
The  latter  are  made  under  the  naked  authority  of  the  writ, 

2  When  such  is  the  case. 


576  ABSTRACTS    OF    TITLE. 

the  former  under  the  direct  supervision  of  the  court.3  Judi- 
cial sales  are  usually  intrusted  to  a  master,  who  also  executes 
the  deed,  and  on  such  sale  a  certificate  issues  to  the  purchaser 
in  like  manner  as  in  sales  on  execution.  The  following  ab- 
stract presents  the  salient  features  of  a  master's  certificate: 

„ ,        ,    ,     _ .  ,  Certificate  of  Sale. 

Edward  A.   Dicker,  - 


Master  in  Chanc- 
ery of  the  Circuit 
Court  of  Cook 
County,  III., 

to 

William  Jackson. 

Doc.  10,028. 


Dated  May  3,  1880. 
Recorded  May  3,  1880. 
Book  210,  page  500. 
Said  master  certifies  that  in  pursu- 
ance of  a  decree  entered  June  15,  1879, 
by  said  court  in  the  cause  in  chancery 
entitled  [here  set  out  the  title  of  the 
cause]  he  duly  advertised  according  to 
law  the  lands  hereinafter  described  to  be  sold  at  public  auction 
to  the  highest  and  best  bidder  for  cash  at  10  o'clock  A.  M.,  on 
May  3,  1880,  at  the  front  door  of  the  court  house,  in  the  city 
of  Chicago,  III. 

That  at  the  time  and  place,  so  aforesaid,  appointed  for  said 
sale,  he  attended  to  make  the  same  and  offered  and  exposed  said 
lands  for  sale  at  public  auction  to  the  highest  and  best  bidder 
for  cash.  Whereupon  William  Jackson  offered  and  bid  therefor 
$1,000.00,  and  that  being  the  highest  and  best  bid  therefor, 
he  accordingly  struck  off  and  sold  to  said  bidder  for  said  sum 
the  said  lands  which  are  situated  in  Cook  County,  Illinois,  and 
described  as  follows,  to  wit:  [here  describe  the  property].  He 
further  certifies  that  said  William  Jackson,  his  legal  representa- 
tives or  assigns,  will  be  entitled  to  a  deed  of  said  premises  on 
May  3,  1881,  unless  the  same  shall  be  redeemed  according  to 
law. 

The  certificate  of  sale  confers  on  the  holder  no  title  c  r  inter- 
est in  the  land,  especially  where  the  time  for  redemption  has 

3Meetze  V.  Padgett,  1  S.  C.  127;     Lasell   p.  Powell,   7  Coldw.    (Tenn.) 
277. 


JUDICIAL    AXD    EXECUTION    SALES.  577 

not  expired,4  and  the  possession  of  the  defendant  in  execution 
can  not  be  disturbed  until  his  title  has  been  transferred  by 
the  officer's  deed.3  After  the  execution  of  a  deed  the  certifi- 
cate of  sale  ceases  to  be  an  essential  muniment  of  title.0 

§  489.  Assignment  of  Certificate.  A  certificate  given  at 
a  judicial  or  execution  sale  is  usually  assignable  by  indorsement, 
and  the  assignee  is  entitled  to  the  benefits,  in  every  respect,  to 
which  the  original  purchaser  was  entitled  therefrom.  On  the 
other  hand,  it  is  subject  in  his  hands  to  all  defenses  that  could 
have  been  made  against  it  in  the  hands  of  the  assignor,  such 
assignee  standing  in  the  shoes  of  the  original  purchaser.  But 
such  purchaser  does  not  take  the  land  itself  by  his  bid ;  he  has 
only  an  incipient  interest  that  may  or  may  not  ripen  into  an 
absolute  estate;  and  as  a  party  can  not  assign  that  which  he 
hath  not,  so  such  purchaser,  not  having  the  legal  title  to  the 
property,  of  course  can  not  assign  it.  It  would  seem,  therefore, 
that  the  assignee  can  not  be  regarded  as  an  innocent  purchaser, 
nor  entitled  to  protection  as  such,  until  he  is  clothed  with  a 
legal  title  by  a  sheriff's  deed.7 

Where  the  original  purchaser  dies  before  the  issuance  of  a 
deed,  in  the  absence  of  an  express  devise,  his  executors  will  suc- 
ceed to  no  rights  in  the  land,  and  have  no  right  to  demand  a 
deed,  but  the  sheriff's  deed  should  be  made  to  the  deceased  pur- 
chaser's heirs  at  law.8 

§  490.  Proof  of  Title  Under  Judicial  and  Execution 
Sales.  Where  a  person  attempts  to  avail  himself  of  a  decree, 
as  an  adjudication  upon  the  subject-matter,  or  as  a  link  in  his 
chain  of  title,  founded  on  a  judicial  sale  under  the  decree,  he 
is  required  to  produce  the  judgment  roll,  so  that,  among  other 
things,  the  court  may  determine,  on  an  inspection  of  the  entire 
roll,  whether  the  court  which  rendered  the  decree  had  jurisdic- 

4  Huftalin  v.  Misner,  70  111.  55.  see     Messerschmidt     V.     Jakcr,     22 

5  Hays  v.  Russell,  70  111.  669.  Minn.  81. 

6  Gardner  v.  Eberhart,  82  111.  316.  8  Potts  v.  Davenport,  79  111.  455; 

7  Roberts  V.  Clelland,  82  111.  538;  Swink  v.  Thompson,  31  Mo.  336. 
Reynolds  v.  Harris,  14  Cal.  667,  and 

37 


578  ABSTRACTS    OF    TITLE. 

tion  of  the  subject-matter.9  It  is  true,  the  purchaser  may  rest,  ' 
in  support  of  his  title,  upon  the  judgment  or  decree,  and  the 
deed  thereunder,  but  he  must  produce  a  valid  judgment  or  de- 
cree, and  the  well  established  rule  is,  that  the  method  of  proving 
such  judgment  or  decree  to  be  valid  is  by  the  production  of  the 
roll,  on  an  inspection  of  which  it  may  be  determined  whether 
the  court  had  the  necessary  jurisdiction  of  the  parties  and  of 
the  subject-matter.10  In  analogy,  therefore,  to  the  presenta- 
tion of  the  judgment  roll,  a  synopsis  of  the  papers  and  pro- 
ceedings in  the  cause  should  always  form  a  preliminary  state- 
ment to  the  abstract  of  the  officer's  deed,  and  this  should  be  suf- 
ficiently full  and  explicit  to  enable  counsel  to  pass  with  judicial 
discrimination  upon  the  merits  of  the  title  as  affected  by  the  pro- 
ceedings. In  all  proceedings  in  equity,  where  the  suits  are 
wholly  or  partially  in  rem,  this  is  always  done,  but  in  legal 
actions,  or  where  the  proceeding  is  in  personam,  a  different  rule 
is  generally  observed.  The  reason  for  this  is  apparent,  in  that 
personal  actions  affect  the  land  only  collaterally  and  by  reason 
of  the  statutory  lien  of  the  judgment,  hence,  examiners  have  not 
deemed  it  necessary  to  show  the  various  steps  which  led  up  to 
the  judgment,  but  have  contented  themselves  with  a  simple 
showing  of  the  fact  that  judgment  was  rendered.  Yet  if  the 
court  failed  to  obtain  jurisdiction  of  the  person  of  the  judg- 
ment debtor,  and  has  erroneously  proceeded  to  hear  the  proofs 
and  render  judgment  when  no  sufficient  steps  had  been  first 
taken  to  bring  the  parties  properly  before  it,  any  sale  made  in 
satisfaction  of  such  judgment  would  be  void  and  confer  no  title 
on  the  purchaser.11  These  are  extreme  cases,  yet  they  have 
occurred,  and  similar  cases  may  again  occur,  and  it  would  seem, 
therefore,  that  in  actions  in  personam,  followed  by  judgment, 

9  See  "Actions  and  Proceedings,"  this  case,  there  was  a  sale  under 
infra.  execution;  the  judgment  was  aftor- 

10  Harper  r.  Rowe,  53  Cal.  233;  1  ward  declared  void  for  want  of 
Greenl.  Ev.  §511;  2  Phil.  Ev.  138;  proof  of  service,  and  the  sale  de- 
Vail  v.  Iglehart,  69  111.   332.  clared  a  nullity;  and  see  Johnson  v. 

n  Albee  V.  Ward.  8  Mass.  79;  Baker.  38  111.  98;  but  compare 
Miller    v.    Handy,    40    111.    448.     In       Fitch  v.  Boyer,  51  Tex.  336. 


JUDICIAL    AND    EXECUTION    SALES.  570 

execution  and  deed,  sufficient  should  be  shown  to  enable  counsel 
to  see  that  the  parties  were  properly  before  the  court.  In  any 
event,  the  examiner  should  inspect  the  judgment  roll  as  well  as 
the  docket,  and  if,  from  such  inspection,  palpable  errors  are 
manifest  they  should  be  properly  noted. 

§  491.  Continued  —  Presumptions.  It  is  true,  however, 
as  a  general  proposition,  that  a  domestic  judgment  of  a  court 
of  general  jurisdiction,  upon  a  subject-matter  within  the  or- 
dinary scope  of  its  powers  and  proceedings,  is  entitled  to  such 
absolute  verity,  that,  in  a  collateral  action,  even  where  the 
record  is  silent  as  to  notice,  the  presumption,  when  not  contra- 
dicted by  the  record  itself,  that  the  court  had  jurisdiction  of 
the  person  also,  is  so  conclusive  that  evidence  aliunde  will  not 
be  admitted  to  contradict  it.12  It  is  probably  on  the  strength 
of  this  doctrine  that  examiners  have  been  accustomed  to  show 
only  the  fact  of  judgment,  and  not  the  preliminary  steps  at- 
tending it,  assuming  the  judgment  to  be  valid;  and  attorneys 
have  passed  upon  the  facts  so  presented  in  view  of  the  oft-re- 
peated principle,  that  all  that  a  purchaser  must  show  to  sus- 
tain his  title,  is  a  valid  judgment,  execution,  and  a  sheriff's 
deed.13  If  the  court  had  jurisdiction  of  the  subject-matter,  and 
the  proper  parties  were  before  it,  and  its  proceedings  were  regu- 
lar, and  the  sale  was  properly  conducted,  then  the  title  of  an 
innocent  purchaser  will  not  be  disturbed,  and  he  may  rest  secure 
upon  the  assurances  of  his  deed.  These  are  the  great  essentials 
to  a  perfect  title,  and  all  that  a  purchaser  must  show  to  satis- 
factorily prove  it. 

A  purchaser  is  not  bound  to  go  through  all  the  proceedings, 

12  Fitch   v.    Boyer,   51    Tex.    336;  Foley,    40    Cal.    281.     The    common 

Guilford     v.     Love,    49    Tex.     715;  law    presumption    in    favor    of    the 

Grif.'ln  v.  Page,  18  Wall.  350;  Halm  jurisdiction    and    regularity   of   the 

V.  Kelly,  34  Cal.  391;   Freeman  on  proceedings   of   courts   of   record   or 

Judg'ts,    §124;    2    Am.    Lead.    Cas.  general   jurisdiction,   liad  its  origin 

736.  in  the   fact   that,    at    common   law, 

i- Coffee  V.  Silvan,   15  Tex.  362;  no  judgment  could  be  given  against 

Hughes  v.  Watt,  26  Ark.  228;  Len-  a  defendant  until   he   had  appeared 

nox  v.  Clarke,  52  Mo.  115;   Splahn  in  the  action:     Nefi   v.  Pennoyer,  3 

V.  Gillespie,  48   Ind.   397;    Mayo   V.  Sawyer,  274. 


5S0  ABSTRACTS    OF    TITLE. 

and  to  look  into  all  the  circumstances,  and  see  that  the  judg- 
ment or  decree  is  right  in  all  its  parts.  He  has  the  right  to 
presume  that  the  court  has  taken  the  necessary  steps  to  investi- 
gate the  rights  of  the  parties,  and  upon  such  investigation  has 
properly  rendered  a  judgment  or  decreed  a  sale.  He  will  not 
be  affected  by  any  imperfection  in  the  frame  of  the  bill  if  it 
contain  sufficient  matter  to  show  the  propriety  of  the  decree, 
and  the  propriety  of  the  decree  must  be  attested,  and  its  valid- 
ity determined  by  the  then  existing  circumstances.14 

§  492.  Probate  Sales.  "Probate  sales,"  says  Mr.  Free- 
man, "  we  are  sorry  to  say,  are  generally  viewed  with  extreme 
suspicion.  Though  absolutely  essential  to  the  administration 
of  justice,  and  forming  a  portion  of  almost  every  chain  of  title, 
they  are  too  often  subjected  to  tests  far  more  trying  than  those 
applied  to  other  judicial  sales.  Mere  irregularities  of  proceed- 
ing have,  even  after  the  proceedings  had  been  formally  ap- 
proved by  the  court,  often  resulted  in  the  overthrow  of  the 
purchaser's  title.  In  fact,  in  some  courts,  the  spirit  manifested 
toward  probate  sales  has  been  scarcely  less  hostile  than  that 
which  has  made  tax  sales  the  most  precarious  of  all  the  methods 
of  acquiring  title.  "  15  Possibly  the  learned  author  has  taken  a 
too  extreme  view  of  the  matter,  though  it  must  be  conceded 
that  by  reason  of  the  many  jurisdictional  facts  and  circum- 
stances which  environ  sales  of  this  character,  titles  derived  there- 
under are  not  always  as  stable  as  those  derived  under  sales  in 
equity,  or  even  by  execution.16      The  jurisdiction  of  probate 

i4Zirkle     v.    McCue,     26'  Grait.  N.  H.  124) ,  yet,  owing  to  the  pecul- 

(Va.)   517.  iarly  connected  character  of  its  pro- 

15  Freeman  Void  Jud.  Sales,  44.  ceedings,    and    the    interdependence 

io  While  the  decrees  of  a  probate  of  all  its  acts,  as  well  as  the  further 

court,   upon   matters   within   its  ju-  fact  that  its  practice  is   neither  in 

risdiction   are   as   final   and   conclu-  accordance     with     established    com— 

sive  as  the  judgments  of  any  other  mon    law   nor   chancery   precedents, 

court    (Barker    v.    Barker,    14   Wis.  and    hence    not    reviewable    in    the 

131 ;    Cummings   r.   Cummings,   123  light    afforded   by   such    precedents, 

Mass.    271 ;    Dayton   r.   Mintzer,   22  they    are    not    merely    voidable    if 

Minn.  393 ) .  and  its  records  import  want    of    jurisdiction    appears,    but 

absolute    verity     (Wood    v.    Myrick,  absolutely  void    (Sumner  v.  Parker, 

16  Minn.  494;  Tibbitts  V.  Tilton,  24  7  Mass.  79;  Smith  V.  Rice,  11  MaSS. 


JUDICIAL    AXD    EXECUTION    SALES.  581 

< 

courts  to  order  the  sale  of  lands  of  a  decedent  is  statutory  and 
limited,  and  must  appear  from  the  record,  but,  while  no  intend- 
ments will  be  made  in  its  favor,  the  tendency  is  to  disregard 
mere  irregularities,  errors  of  form  and  other  matters  not  directly 
affecting  jurisdiction,  and  all  presumptions  in  this  respect  are 
in  favor  of  the  sale  and  of  the  validity  of  the  title  based  on 
such  proceedings.17 

Probate  courts  are  invested  by  law  with  a  general  jurisdic- 
tion in  cases  where  real  estate  is  to  be  sold  for  the  payment  of 
the  debts  of  decedents,  and  where  a  court  ordering  a  sale  has 
jurisdiction  of  the  subject-matter  and  of  the  proper  parties, 
even  if  the  proceedings  are  irregular  and  erroneous,  the  decree 
and  sale  under  it  can  not  be  assailed  in  a  collateral  proceeding,18 
nor  can  the  purchaser  for  that  reason  avoid  the  sale.19  Until 
reversed,  the  decree  confers  power  to  sell  and  pass  the  title, 
however  erroneous  it  may  be.20  Xo  class  of  public  sales  are  bet- 
ter entitled  to  a  just  degree  of  protection  than  those  of  admin- 
istrators.21 

But  while  this  represents  the  prevailing  sentiment  it  must 
yet  be  remembered  that  the  administrator,  as  such,  has  no  in- 
terest in  or  power  over  the  land  belonging  to  his  intestate  at 
his  death;  nor  has  the  probate  court  any  jurisdiction  over  it 
for  any  purpose  whatever,  but  only  a  simple  power  to  order  its 
sale.  This  power  is  derived  wholly  from  special  legislative 
grant  and  its  exercise  is  restricted  to  the  happening  of  par- 
ticular contingencies.      These   contingencies   are   jurisdictional 

507),   and  an  unwarranted   step  at  v.  Moffitt,  69  111.  641;  Maurr  v.  Par- 

the  outset  will  suffice  to  vitiate  all  rish,    26    Ohio    St.    636;    Bowen    v. 

subsequent    proceedings.        Thus,    if  Bond,  80  111.  351. 

the  original  appointment  of  the  ad-  18  Nichols  v.  Mitchel.  70  111.  25S : 

ministrator   is   void,    all   the    suhse-  Wing  v.  Dodge,  80  111.  5G4;  Dayton 

quent  proceedings  are  void:    Gary's  V.  Mintzer,  22  Minn.  393;    Farring- 

Prob.    Prac.    12;    Frederick   r.    Pac-  ton  v.   Wilson,  29   Wis.   383;    Falk- 

quette,  19  Wis.  541.  ner  v.  Guild.  10  Wis.  563. 

17Reynolds    r.    Schmidt,   20   Wis.  19  Wing  v.  Dodge,  80  111.  564. 

374;    Mohr    v.   Tulip,   40   Wis.    66;  20  Wing    v.    Dodge.    80    111.    564; 

Woods    v.    Monroe,    17    Mich.    238;  Montgomery  V.  Johnson,  31  Ark.  74. 

Morrow  i\  Weed,  4   Iowa.  77;    King  21  Goudy  V.  Hall,  36  111.  313;  Mc- 

v.  Kenfs  Heirs,  29  Ala.  542;  Moffitt  Cowan  v.  Foster,  33  Tex.  241. 


582  ABSTRACTS   OF   TITLE. 

and  should  all  appear  affirmatively.  They  consist,  mainly,  of 
the  fact  of  insolvency  of  personal  estate,-2  as  shown  by  the 
administrator's  report;  notice  to  persons  interested,  and  a 
fiiiding  of  the  fact  of  insufficiency  of  personal  assets.  The  rec- 
ord must  show  on  its  face  these  jurisdictional  facts.23 

It  must  further  he  borne  in  mind,  that  the  foundation  of  all 
title  derived  through  an  administrator  is  the  fact  of  the  death 
of  the  intestate.  This  must  always  affirmatively  appear  —  di- 
rectly and  positively.  Administrations  are  sometimes  granted 
on  presumptions,  but  every  one  acts  at  his  peril  in  dealing  with 
an  administrator  who  has  been  appointed  upon  a  mere  presump- 
tion that  his  supposed  intestate  is  dead ;  and  all  persons  are 
conclusively  presumed  to  know,  if  the  supposed  intestate  should 
subsequently  turn  up  alive,  that  the  grant  of  administration, 
and  all  acts  done  under  it,  would  be  absolutely  void.24 

§  493.  Nature  and  Requisites  of  Probate  Sales.  Sales 
in  probate,  though  made  in  connection  with,  and  as  a  part 
of  the  regular  administration  and  settlement  of  the  decedent's 
estate,  are  yet  to  be  regarded  as  special  and  independent  pro- 
ceedings. Such  proceedings  are  regularly  inaugurated  by  the 
filing  of  a  petition,  stating  the  necessary  jurisdictional  facts, 
and  praying  for  license  to  sell,  and  it  is  this  petition,  and  the 
recital  of  the  statutory  requisites,  which  gives  to  the  court  its 

2  2  The  lien   of  a  creditor  in  pro-  where   the   fact   of   death   has    been 

bate  is  different  from  all  other  liens  presented  to  and  decided  by  a  court 

upon  land  in  this,  that  it  can  never  of  competent  jurisdiction  the  adju- 

be  enforced  until  the  personal  estate  dication   becomes   conclusive   of  the 

of  the  decedent  has  been  exhausted.  fact,   however  erroneous   such   adju- 

Garvin  v.  Stewart.  59  111.  232.  dication  may  be,  until  set  aside  in  a 

23  Root  r.  McFerrin,  37  Minn.  17.  direct  proceeding   (Porter  v.  Purdy, 

24  Springer  v.  Shavender,  118  N.  29  X.  Y.  106)  and  that  titles  ac- 
(.  33;  Melia  V.  Simmons,  45  Wis.  quired  under  such  adjudication  will 
334;  Thomas  v.  People,  107  111.  517.  remain  intact,  notwithstanding  the-, 
1  ne  text  states  the  old  and  well  cs-  supposed  decedent  returns  alive. 
tablished  rule  and  the  one  which  ob-  See  Scott  v.  McNeal,  5  Wash.  30ft. 
tains  generally  throughout  the  The  leading  case  on  this  point  is 
United  States.  But  of  late  years  we  Roderigas  r.  East  River  Savings 
may  find  some  departures  therefrom  Institution,  63  X1.  Y.  460.  but  com- 
in  a  few  States  where  it  is  held  that  pare  the  same  case  in  76  N.  Y.  316. 


JUDICIAL    A^D    EXECUTION    SALES.  588 

jurisdiction  to  take  cognizance  of  the  matter  and  make  subse- 
quent orders  in  relation  to  same.25  The  proceeding  is  in  the 
nature  of  an  action,  of  which  the  petition  is  the  commence- 
ment, and  the  order  of  sale  the  judgment,  the  whole  forming 
a  new,  separate  and  independent  proceeding,  depending  for  its 
validity  upon  the  sufficiency  of  the  facts  stated  in  the  petition.26 
All  the  necessary  features  common  to  equitable  actions,  both  as 
respects  the  subject-matter  and  the  parties,  must  be  present 
and  affirmatively  appear,  and  as  the  action  is  adversary  in  its 
character,  and  in  derogation  of  the  rights  of  the  devisees  and 
heirs,  all  the  parties  having  an  interest  in  the  property,  defend- 
ant as  well  as  plaintiff,  must  be  regularly  brought  before  the 
court.27  The  filing  of  the  petition  will  give  the  court  juris- 
diction of  the  subject-matter,28  but  jurisdiction  must  also  be 
obtained  over  the  persons  of  the  heirs  and  devisees  in  the  man- 
ner prescribed  by  law,  as  well  as  of  the  subject-matter,  or  its 
order  will  be  void.29  Hence,  the  proceedings  must  show  issu- 
ance and  service  of  citations,  or  appearance  in  the  action,  and  a 
due  observance  of  the  rights  of  minors  and  others  under  disabil- 
ity, for  whom  special  guardians  must  be  appointed,  should  they 

25  Pryor  V.  Downey,  50  Cal.  389;  which  for  many  years  was  accepted 
Hall  V.  Chapman,  35  Ala.  553 ;  in  this  country,  and  is  founded  on 
Jackson  V.  Robinson,  4  Wend.  436 ;  better  reason  and  more  correct  prin- 
Ethell  v.  Nichols,  1  Idaho  (N.  S.),  eiples.  In  that  case  it  was  held, 
741.     Moffitt  V.   Moffitt,  69  111.  641.  that  the   proceeding   is  in   rein  and 

26  The  necessity  for  a  sale  is  not  not  adversary,  and  that  the  admin- 
a  matter  for  the  administrator  or  istrator  represents  the  land, 
executor  to  determine,  but  is  a  2S  Grayson  r.  Weddle,  63  Mo. 
conclusion  which  the  court  must  523;  Botsford  v.  O'Connor,  57  111. 
draw  from  facts  stated,  and  the  pe-  79.  The  text  states  the  rule  as  us- 
tition  must  furnish  materials  for  ually  understood,  of  course,  juris- 
the  judgment:  Pryor  V.  Downey,  50  diction  in  the  court  pronouncing  a 
Cal.  398 ;  Ethell  V.  Nichols,  1  Idaho  decree  of  sale  does  not  rest  upon  the 
(X.  R.),  741.  petition  nor  the  averments  of  plead- 

27  Morris  V.  Hogle,  37  111.  150;  ings  but  upon  the  existence  of  sub- 
Hoard  v.  Hoard,  41  Ala.  590;   Guy  stantive   facts. 

v.  Pierson,  21  Ind.  18;  Fiske  V.  Kel-  29  Fiske  r.  Kellogg,  3  Oreg.  503; 

logg,  3  Oreg.  503.    This  is  contrary  to  Clark  v.  Thompson,  47   111.  25;    ls- 

the  doctrine  stated  in  Grignon's  Les-  rael  v.  Arthur,  7  Col.  8. 
see  v.  Astor,   2  How.    (U.  S.)    319, 


584 


ABSTRACTS    OF    TITLE. 


have  no  guardians,  or  if  having  guardians  they  fail  to  appear.30 
The  method  of  citation  is  statutory,  but,  as  a  rule,  contemplates 
a  general  notice  by  publication  and  a  personal  service  on  all  per- 
sons interested,  if  within  the  jurisdiction  of  the  court,  and  if 
the  proofs  show  an  insufficient  service  or  publication,  the  sub- 
sequent proceedings  are  fatally  defective.31 

§  494.  Abstract  of  Probate  Sales.  Sales  by  an  executor 
or  administrator  may  be  shown  in  connection  with  the  settle- 
ment of  the  decedent's  estate,  or  as  independent  exhibits. 
Where  a  former  abstract  shows  the  death  of  the  decedent,  pro- 
bate of  his  estate,  etc.,  and  a  sale  of  all  or  a  portion  of  the  land 
of  such  decedent  occurs  during  a  subsequent  examination  or  con- 
tinuation, no  necessity  exists  for  re-exhibiting  the  probate  pro- 
ceedings, and  the  abstract  of  the  sale  commences  with  the  filing 
of  the  petition.  Where  the  examination  is  original,  sufficient 
of  the  action  of  the  probate  court  must  be  given  to  show  the 
facts  of  death,  application  for  probate,  appointment  of  admin- 
istrator, and  proof  of  heirship,  in  case  of  intestate  estates ;  and 
of  probate  of  will,  letters  testamentary  and  devisees,  in  case  of 
testate  estates.  Examples  of  probate  of  wills  will  be  found  in 
the  chapter  on  wills,  and  of  the  probate  of  intestate  estates 
in  the  chapter  on  descents ;  a  probate  sale  in  either  case  would 
be  shown  somewhat  as  follows,  making  due  allowance  for  the 
minor  differences  which  must  appear  between  testacy  and  intes- 
tacy: 


30  Fiske  v.  Kellogg,  3  Oreg.  503. 
The  omission  to  make  the  guardian 
of  the  minor  heirs  or  devisees  a 
party,  can  not  be  taken  advantage 
of  in  a  collateral  proceeding:  Har- 
ris v.  Lester,  80  111.  307. 


31  Blodget  v.  Hitt,  29  Wis.  169; 
Mohr  v.  Tulip,  40  Wis.  66;  Sibley  V. 
Waffle,  16  N.  Y.  180;  Botsford  V. 
O'Connor,  57  111.  72. 


JUDICIAL    AND    EXECUTION    SALES. 


585 


'Samuel  M.  Henderson,  ad- 
ministrator of  the  Es- 
tate of  Nathan  Adams, 
deceased, 

vs. 

Charles  W.  Adams,  Henry 
S.  Adams,  Mary  E. 
Adams,  widow  of  Xa- 
than  Adams,  and 
Thomas  R.  Smith. 


Probate  Court  of  Cook  County,  III. 
Probate  Sale. 

Petition  of  Samuel  M.  Hender- 
son, administrator  aforesaid,  filed 
July  G,  1881. 

Represents  (among  other  things) 
that  the  personal  estate  of  deceased 
is  insufficient  to  pay  claims 
against  said  estate  in  the  sum  of 
$1,000.00,  besides  the  cost  of  ad- 
ministration.52 That  deceased  died 
having  a  claim  and  title  to  the  fol- 
lowing described  real  estate:  [de- 
scribing the  same.]  That  said  deceased  left  surviving  Mary  E. 
Adams,  his  widow,  having  a  dower  interest  in  liis  real  estate; 
and  Charles  W.  Adams,  and  Henry  S.  Adams,  his  children, 
his  only  heirs  at  law.  That  Henry  S.  Adams  is  a  minor  and 
has  no  guardian.  That  Lot  22,  Block  IJf,  [etc.,]  is  now  occu- 
pied by  and  in  the  possession  of  Thomas  R.  Smith. 

Prays  that  a  guardian  ad  litem  may  be  appointed  for  said 
minor  heir,  and  that  the  Court  will  order  and  direct  said  peti- 
tioner to  sell  the  said  real  estate  or  so  much  as  may  be  necessary 
to  pay  said  deficiency. 
Sworn  to  July  6,  1881. 

Summons  issued,  dated  July  6,  1881,  to  all  of  said  defend- 
ants, returnable  on  the  3d  Monday  of  July,  1881. 

Summons  returned  indorsed  as  follows:  33     [In  a  necessary 
case  set  out  the  return.] 


32  This  is  the  vital  part  of  the  pe- 
tition, for  a  sale  of  land  to  pay 
debts  is  never  allowed  until  the 
personal  property  has  been  ex- 
hausted; this  statement  is  therefore 
a  jurisdictional  fact:  Foley  V.  Mc- 
Donald, 4G  Miss.  238;  Diversy  v. 
Johnson,  03  111.  547. 

33  The  return  of  process  in  every 
action  furnishes  the  proof  of  juris- 


diction over  the  person,  and  in  all 
cases  of  default  or  non-appearance 
of  any  of  the  parties  the  method 
of  service  is  invariably  to  be  shown 
by  a  transcript  of  the  officer's  re- 
turn. Unless  parties  arc  brought 
before  the  court  in  the  manner  |>m- 
vided  by  statute,  the  eourl  acquires 
no  jurisdiction  over  them.  Donlin 
v.  Hettinger.  57  111.  348.     Where  all 


586 


ABSTRACTS    OF    TITLE. 


Order  entered  July  25,  1881,  appointing  Charles  Anderson 
guardian  ad  litem  for  said  minor  defendant. 

Answer  by  said  defendants  and  said  minor  defendant  by  his 
guardian  ad  litem,  and  reply  thereto,  filed  July  25,  1881.3* 
[]STote  default,  if  any]. 

Decree  entered  July  25,  1881.  (Record  2  of  decrees,  page 
lj.9.)     [Set  out  the  decree  or  the  substance  of  same]. 

Administrator  s  report  of  sale  filed  Sept.  22,  188 i.35 

Represents,  that  in  pursuance  of  a  decree,  etc.,  [set  out  the 
substance  of  the  report].     Sworn  to,  Sept.  19,  1881. 

Attached  to  the  report  of  sale  and  filed  therewith,  is  proof 
of  publication  and  posting  notices  of  sale. 

Printed  copy  of  notice  of  sale  gives  title,  etc.30 

Administrator's  report  of  sale  approved  and  sale  confirmed, 
Sept.  22,  1881. 


parties  have  appeared  this  becomes 
of  minor  importance,  and  a  brief 
statement  of  the  fact  of  service 
without  disclosing  the  method  is 
sufficient. 

34  If  the  court  has  acquired  ju- 
risdiction of  the  subject-matter  by 
the  filing  of  a  petition,  and  of  the 
persons  of  infant  defendants  by 
the  publication  of  notice,  a  failure 
to  appoint  a  guardian  ad  litem,  or 
his  failure  to  answer,  will  not  defeat 
the  jurisdiction:  Gage  c.  Schroe- 
der,  73  111.  44. 

35  It  is  not  usual  to  abstract  the 


report  of  sale,  but  where  the  record 
is  silent  on  vital  points  or  no  evi- 
dence appears  of  statutory  essen- 
tials, as,  of  posting  notices  of  sale, 
or  other  necessary  incidents,  state- 
ments under  oath  in  a  report  of 
sale  have  been  held  sufficient  in  col- 
lateral proceedings:  Woods  ('. 
Monroe,  17  Mich.  2^8.  In  such 
cases  the  recitals  of  the  report  be- 
come necessary  to  show  validity. 
and  should  find  appropriate  men- 
tion. 

3G  See    §  477    for   abstract   of   no- 
tice of  sale. 


CHAPTER  XXVIII. 


ACTIONS    AND    PROCEEDINGS. 


§  495. 

Chancery  proceedings. 

§  507. 

Master's    and    referee's    re- 

49G. 

Authority    and    jurisdiction 

ports. 

of  chancery   courts. 

508. 

Verdicts. 

497. 

Authority    and    jurisdiction 

509. 

Abstract    of    chancery    pro- 

of probate  courts. 

ceedings. 

498. 

Actions   and    proceedings   to 

510. 

Injunctions. 

be  noticed. 

511. 

Ejectment. 

499. 

Jurisdiction  the  great  essen- 

512. 

Quia  timet. 

tial. 

513. 

Partition. 

500. 

Notice  afforded  by  chancery 

514. 

Specific  performance. 

records. 

515. 

Redemption. 

501. 

Process. 

516. 

Foreclosure. 

502. 

Formalities  of  a  summons. 

517. 

Dower. 

503. 

Service. 

518. 

Divorce. 

504. 

Proof  of  service. 

519. 

Right  of  eminent  domain. 

505. 

Affidavit  and  order  of  publi- 

520. 

Proceedings    for    condemna- 

cation. 

tion. 

506. 

Appearance      without      pro- 
cess. 

531. 

Construction  of  Avills. 

§  495.  Chancery  Proceedings.  In  the  compilation  of 
abstracts  the  general  name  of  "  Chancery  Proceedings  "  has  been 
given  by  examiners  to  all  classes  of  actions  that  operate  directly 
upon  the  land  and  culminate  in  judgments  in  rem.  And  while 
it  is  undoubtedly  true  that  the  proper  tribunals  for  the  trial 
of  land  titles  are  the  common  law  courts,  and  that  equitable  ju- 
risdiction is  only  invoked  when  the  law  is  inadequate  to  give 
relief,  yet  the  common  law  actions  respecting  land  have  to  a 
great  extent  been  abolished,  or  superseded  by  statutory  reme- 
dies of  the  same  nature  but  based  upon  equitable  principles.1 

i  The  State  of  New  York,  in  1848,  State,    whereby    the    then    existing 

passed     an    act    "  to    simplify    and  forms   of   actions   and    pleadings   in 

abridge  the   practice,  pleadings  and  common   law   cases   were  abolished; 

proceedings  "  of  the  courts  of  that  the    distinction    between    legal    and 

587. 


588 


ABSTRACTS    OF    TITLE. 


In  many  States  no  separate  chancery  jurisdiction  exists  and 
the  law  courts  are  authorized  to  exercise  chancery  powers  and 
administer  equitable  relief  in  all  cases  brought  before  them, 
and  to  adjust  the  claims  of  the  parties  litigant  according  as 
the  right  may  appear  without  reference  to  the  technical  rules 
applying  to  either  jurisdiction.2  The  common  law  actions 
respecting  title,  in  such  courts,  are  regarded  rather  as  equitable 
than  legal  proceedings,  and  equitable  defenses  are  permitted, 
while  the  judgment  of  the  court  adapts  itself  to  equitable  meth- 
ods in  disposing  of  the  rights  of  the  parties.3  This  chapter 
will  be  devoted  to  a  general  review  of  all  legal  actions  respect- 
ing land  which  partake  of  an  equitable  nature  and  to  such  ac- 
tions as  are  strictly  within  the  equity  jurisdiction. 

§  406.  Authority  and  Jurisdiction  of  Chancery 
Courts.  The  primary  object  of  courts  of  equity,  is,  to  supply 
defects  in  the  administration  of  justice  in  the  ordinary  courts, 
assuming  the  power  of  enforcing  the  principles  upon  which 
the  ordinary  courts  decide,  when  the  powers  of  those  courts  or 


equitable  remedies  abrogated;  and 
a  uniform  course  of  proceeding,  in 
all  cases,  was  established.  The 
State  of  Ohio  some  years  later  fol- 
lowed the  example  of  New  York,  and 
the  codes  thus  formulated  by  these 
two  States,  have  been  made  the 
basis  of  the  procedure  of  a  number 
of  other  States.  In  some  States  the 
ancient  practice  is  still  retained,  but 
in  a  greatly  modified  form,  and  the 
distinction  between  legal  and  equi- 
table remedies  preserved,  though 
both  remedies  are  administered  in 
the  same  court. 

2Troost  v.  Davis,  31  Ind.  34. 
When  the  legal  title  alone  is  in  ques- 
tion it  needs  no  support  from  equi- 
ties, but  stands  impregnable  in  its 
own  strength  and  is  presumed  to 
embrace  all  equites.  Proof  of  equi- 
ties becomes  important  when  the 
legal  title  is  defective,  or  when  it 


is    proposed   to   assail   it :    Shaw   v. 
Chambers,  48  Mich.  355. 

3  The  codes  of  procedure  which 
abolish  all  distinction  between  legal 
and  equitable  remedies,  endeavor 
to  blend  them  into  one  system, 
combining,  or  professing  to  com- 
bine, the  principles  peculiar  to 
each,  but  though  the  only  form  of 
a  suit  recognized  by  them  is  that 
known  as  the  "  civil  action,"  the 
established  principles  pertaining  to 
each  branch  of  the  law  are  still  in- 
tact and  of  binding  force  and  effi- 
cacy. The  only  true  difference  be- 
tween the  new  and  old  systems  is 
in  the  practical  application  of  those 
principles:  Rubens  v.  Joel.  3  Kern. 
488;  Scovill  v.  Griffith,  2  Kern, 
515;  Rozierz  v.  Van  Dam,  16  Iowa, 
175.  See  Meyers  v.  Rasback,  4 
How.  (N.  Y.)  83;  Giles  V.  Lyon,  4 
Com.    (N.  Y.)    600. 


ACTIONS    AND    PROCEEDINGS.  589 

their  modes  of  proceeding  are  insufficient  for  the  purpose ;  to 
prevent  these  principles,  when  enforced  by  the  ordinary  courts, 
from  becoming,  contrary  to  the  purpose  of  their  original  estab- 
lishment, instruments  of  injustice ;  and  to  decide  on  principles 
of  universal  justice,  when  the  interference  of  a  court  of  judica- 
ture is  necessary  to  prevent  a  wrong,  and  the  positive  law  is 
silent.4  Courts  of  equity  also  administer  to  the  ends  of  jus- 
tice by  removing  impediments  to  the  fair  decision  of  a  question 
in  other  courts,  by  providing  for  the  safety  of  property  in  dis- 
pute pending  a  litigation,5  by  restraining  the  assertion  of 
doubtful  rights  in  a  manner  productive  of  irreparable  damage,0 
by  preventing  injury  to  a  third  person  from  the  doubtful  title 
of  others,7  and  by  putting  a  bound  to  vexatious  and  oppress ive 
litigation,  and  preventing  unnecessary  multiplicity  of  suits;8 
and  without  pronouncing  any  judgment  on  the  subject,  by  com- 
pelling a  discovery  which  may  enable  other  courts  to  give  their 
judgment;  and  by  preserving' testimony,  when  in  danger  of  be- 
ing lost,  before  the  matter  toy  which  it  relates  can  be  made  the 
subject  of  judicial  investigation.9  In  one  way  and  another 
the  exercise  of  this  jurisdiction  often  affects  the  title  to  land. 

§  497.  Authority  and  Jurisdiction  of  Probate  Courts. 
The  probate  courts  of  the  United  States  are  courts  of  special 
and  limited  jurisdiction,  deriving  all  their  authority  from  the 
statute.10  But  while  the  scope  of  their  jurisdiction  is  restricted 
they  can  in  no  proper  sense  be  regarded  as  inferior  tribunals, 
as  is  sometimes  asserted,  and  their  judgments,  within  the  sphere 
of  their  authority,  are  not  distinguishable  from  the  determina- 
tions of  other  courts.  They  possess  original  and  frequently  ex- 
clusive jurisdiction  in  all  matters  pertaining  to  the  settlement 

i  Whitney  V.  Roberts,  22  111.  381 ;  8  Scott  V.   Moore,   3   Scam.    (111.) 

Long  v.   Barker,   85   111.   431;    Ben-  306;   Imp.  Fire  Ins.  Co.  V.  Gunning, 

nett  v.  Nichols,  12  Mich.  22;  Mears  81  111.  236;  Beatty  r.  Dixon,  5G  Cal. 

v.  Howarth,  34  Mich.   19.  619;  Third  Ave.  R.  R.  Co.  v.  Mayor, 

BMcIntyre  v.  Storey,  80  111.  127.  etc.,  54  N.  Y.  159. 

BBennett    r.    McFadden,    61    111.  9  Mit.    PI.    3;     1    Smith's    Chan. 

334;   Prim  v.  Raboteau,  56  Mo.  407.  Prae.  2. 

7Scot1    v.   Moore,   3  Scam.    (111.)  10  Hendriek    r.    Cleveland,    2    Vt. 

306.  392;  Propst  v.  Meadows,  13  111.   157. 


590  ABSTRACTS    OF    TITLE. 

of  estates  of  deceased  persons,11  which  jurisdiction  continues 
so  long  as  there  is  any  occasion  for  its  exercise,  and  until  there 
has  been  a  full  and  complete  settlement  and  distribution.12 
They  also  possess,  so  far  as  may  be  necessary,  a  portion  of  the 
equitable  powers  exercised  by  a  court  of  chancery,13  and  are 
not  confined  to  the  technical  rules  of  common  law  in  opposition 
to  established  chancery  principles.14  They  are  ordinarily  courts 
of  record  upon  the  administration  of  estates,  or  other  matters 
over  which  they  possess  a  general  jurisdiction,  and  as  liberal 
intendments  are,  or  should  be,  made  in  their  favor,  as  are  ex- 
tended to  the  proceedings  of  the  circuit  court.15  Their  juris- 
diction in  no  State  extends  to  controversies  respecting  the  title 
to  land,  but  the  peculiar  nature  of  the  matters  entrusted  to  their 
charge  makes  their  judgments  and  decrees  of  controlling  effi- 
cacy in  the  decision  of  questions  relative  to  title,  which  may 
arise  in  other  courts. 

§  498.  Actions  and  Proceedings  to  be  Noticed.  The 
actions  and  proceedings  that  call  for  special  notice  on  the  part 
of  the  examiner,  are  such  as  relate  to  the  recovery  of  specific 
real  property,   or  the  possession   thereof,   called  ejectment;16 

11  A   court    of   chancery   may.   in  courts:    Adams    v.    Adams,    22    Vt. 

the  exercise  of  its  general  jurisdic-  50;   Heustis  v.  Johnson,  84  111.  61. 

tion   take  upon   itself  the   adminis-  12  Keeler  V.  Keeler,  39  Vt.  550. 

tration   of   estates,   and   thus,   in   a  13  Bennett    V.    Whitman,    22    111. 

particular  case,  supersede  the  juris-  448;   Appeal  of  Schaeffner,  41  Wis. 

diction  of  the  probate  court:   Free-  260;    Brooks    v.    Chappel,    34    Wis. 

land  V.  Dazey,  25  111.  294;  but  the  405. 

interference  of  a  court  of  chancery  14  Robinson   v.    Swift,   3   Vt.   283. 

in  the  settlement  of  estates  is  usu-  15  Grignon  r.   Astor,  2  How.    (U. 

ally  confined   within  the   narrowest  S. )   319;  Propst  v.  Meadows,  13  111. 

limits,     and     has     gone     upon     the  157;     Moreland     r.     Lawrence,     23 

ground  merely  of  aiding  the  juris-  Minn.    84;     Barker    v.    Barker,    14 

diction     of    the     probate     court     in  Wis.     131;     Ostrom     r.     Curtis,     1 

those  points  only  wherein  its  func-  Cush.  460. 

tions    and    powers    are    inadequate  16  Ejectment    is    a    common    law 

to   the    purposes   of   perfect  justice,  remedy,    but    the    statutory    action 

retaining   its    ancillary   jurisdiction  substituted  in  many  States  is  equi- 

to  the  same  extent  over  matters  in  table  in  its  nature,  and  in  at  least 

the    probate    court,    which    it    has  one  State  the  action  is  a  substitute 

over     those     in     the     common     law  for  a  bill  in  equity. 


ACTIONS    .VXD    PROCEEDINGS.  591 

actions  and  proceedings  for  partition;  17  foreclosure  of  liens18 
and  mortgages ;  bills  to  quiet  title ;  actions  brought  to  enforce 
the  specific  performance  of  land  contracts ;  proceedings  under 
the  right  of  eminent  domain ;  suits  for  dower ;  and  incidentally 
such  bills,  actions,  or  proceedings  as  from  their  nature  may 
operate  as  lis  pendens.  All  the  proceedings  specially  enumer- 
ated, whether  pending  or  closed  by  decree,  should  be  carefully 
scrutinized  and  stated  in  the  abstract  with  a  reasonable  degree 
of  detail.  The  decree  entered  in  these  matters,  when  followed 
by  deed,  is  the  foundation  for  such  deed,  and  of  equal  dignity 
with  it,  while  the  anterior  proceedings  go  to  establish  the  va- 
lidity of  the  decree.  In  addition  to  those  matters  of  exclusive 
cognizance  in  the  circuit  court,  the  examiner  will  also  show  all 
proceedings  in  the  county  (probate)  courts  that  incidentally 
affect  title,  by  reason  of  the  relation  of  the  parties  to  the  sub- 
ject-matter. In  this  way  matters  relating  to  adoption,  guard- 
ianship, etc..  will  frequently  appear,  as  well  as  assignments  of 
dower,   homesteads,  etc. 

§  499.  Jurisdiction  the  Great  Essential.  The  validity 
of  all  decrees,  as  well  as  sales  and  conveyances  which  may  re- 
sult from  them,  depends  on  the  jurisdiction  of  the  court,19  and 
this  has  reference  both  to  the  parties  and  the  subject-matter. 
Both  of  these  particulars  must  satisfactorily  appear  in  the  ab- 
stract, and  are  shown  in  the  one  case  by  a  statement  of  the  re- 
turn of  the  summons,  the  method  of  service  being  also  given 
where  greater  certainty  is  desired,  and  in  the  other  by  a  synop- 
sis of  the  bill,  answer,  and  other  pleadings.  The  decree  in  all 
instances  must  conform  to  the  process  and  allegations,  i.  e.,  to 
the  parties  in  the  action  and  the  matter  recited  in  the  plead- 
ings.20    It  will  therefore  be  seen  that  a  correct  rendering  of 

i"  Partition  is  also  a  common  law  tially  a  chancery  proceeding,  and  is 

action:    Hopkins   v.   Medley,  97   111.  governed  by  the  chancery  practice: 

402;    but    partakes    of    many    equi-  McGraw  r.  Bayard,  96   111.   14fi. 

table  qualities,   and   equity  has   jn-  io  Weidersum     V.     Naumann.     02 

risdiction    as    well    as    law    courts:  How.    (N.  Y.)   Pr.  369;  Campbell  V. 

Hess  r.  Voss,  52  111.  472.  McCahan,  41  111.  4.r>. 

lhA   suit  to  enforce  a  mechanic's  20  Slocum    /'.   Slocum,   9    111.   App. 

lien,  although  statutory,  is  substan-  418.     Thus,    one    case    can    not    be 


592  ABSTRACTS    OF    TITLE. 

the  commencement  of  the  action ;  statement  of  facts  constitut- 
ing the  subject-matter;  and  a  full  presentation  of  the  adjudi- 
cation made  thereon,  are  the  only  matters  of  prime  considera- 
tion on  the  part  of  the  examiner,  and  when  these  several  mat- 
ters show  apparent  regularity  and  a  just  correspondence  in  all 
their  parts,  correct  and  satisfactory  opinions  may  be  predicated 
upon  them,  even  though  minor  details  may  have  been  neglected, 
and  positive  error  is  shown  by  the  record. 

"Where  it  appears  from  the  whole  record  that  the  court  had 
no  jurisdiction  over  the  person  or  subject-matter  the  judgment 
is  void.  By  jurisdiction  is  meant  the  right  to  adjudicate  con- 
cerning the  subject-matter,21  and  by  subject-matter  is  meant 
"  the  nature  of  the  cause  of  action  and  of  the  relief  sought."  22 
A  court  may  be  said  to  have  jurisdiction  of  the  subject-matter 
of  a  suit  when  it  has  the  right  to  determine  the  issue  between 
the  parties  or  grant  the  relief  prayed.  The  issue  is  determined 
from  the  pleadings.  When  the  court  has  cognizance  of  the 
matter  as  it  appears  from  the  pleadings,  and  has  the  parties 
before  it,  then  the  judgment  or  decree  which  is  authorized  by 
the  pleadings,  however  erroneous,  irregular  or  informal  it 
may  be,  is  valid  until  set  aside  or  reversed  on  appeal.23 

§  500.  Notice  Afforded  by  Chancery  Records.  It  is  a 
fundamental  rule  in  equity  that  purchasers  are  directly  af- 
fected by  every  matter  or  circumstance  concerning  the  title  to 
the  property  they  take,  which  affirmatively  appears  from  the 
pleadings  or  decrees  of  courts  of  competent  jurisdiction,  in  ac- 
tions relating  to  such  property,  whether  such  purchasers  have 
actual  notice  or  not.24     It  is  the  application  of  this  rule  which 

alleged  and  another  proved :    Mere-  24  Leiteli  v.  Wells,  48  N.  Y.  585 

dith  V.  Little,  6  Lea    (Tenn!),  521;  Jackson    r.    Warren,    32    111.    331 

Parkhurst  v.  Race,  100  111.  207.  Hersey  r.  Turbett,  27  Pa.  St.  418 

21  Munday  V.  Vail,  34  N.  J.  L.  Blanchard  v.  Ware,  37  Iowa,  305 
422.  Hunt  v.  Haven,  52  N.  H.  162.     Th 

22  Cooper  V.  Eeynolds,  10  Wall  same  rule  has  been  frequently  ap 
(U.  S.)    316.  plied  in  actions  at  law:    See,  Jack 

23  Hope  v.  Blair,  105  Mo.  85;  son  v.  Tuttle.  9  Cow.  (N.  Y.)  233 
Lancaster  v.  Wilson,  27  Gratt.  Howard  v.  Kennedy,  4  Ala.  592 
(Va.)    624.  Bennett   v.   Williams,   5   Ohio,   461 


ACTIONS    AND    PROCEEDINGS.  593 

renders  necessary  a  searching  investigation  of  the  court  rolls 
whenever  real  property  is  sold,  for  every  man  is  presumed  to 
be  cognizant  of  what  transpires  in  the  courts  of  justice,  and  the 
law  will  charge  him  with  actual  notice  of  whatever  there  occurs, 
which  affects  the  merits  of  the  title  he  would  take.25  This 
rule,  which  has  always  been  considered  a  hard  one,26  is  not  a 
favorite  with  the  courts,  who  are  ever  inclined  to  limit  its  ap- 
plication, and  it  will  not  be  extended  to  embrace  collateral  mat- 
ters, or  matters  not  specifically  mentioned  in  the  bill  or  de- 
cree.27 "  In  the  investigation  of  titles,"  says  Mulkey,  J.,  "  pur- 
chasers look  for  decrees  and  judgments  against  those  who  ap- 
pear of  record  to  have  been  owners,  and  when  it  is  ascertained 
that  a  particular  decree  or  judgment  does  not  affect  the  title 
which  is  the  object  of  inquiry,  it  is  believed  not  to  be  custom- 
ary to  look  further;  and  to  hold  that  purchasers  are  affected 
with  constructive  notice  of  every  fact  relating  to  the  purchased 
estate  that  may  happen  to  appear  in  some  of  the  files  of  a  case, 
and  not  elsewhere,  would,  in  our  judgment,  be  carrying  the 
doctrine  of  constructive  notice  to  a  dangerous  extent.  The  es- 
tablishment of  such  a  rule  would  have  a  direct  tendency  to  un- 
settle titles,  for  no  one  could  know  of  a  certainty  when  he  was 
getting  a  good  title,  without  examining  the  files  in  every  case 
in  the  county  where  the  land  lay,  and  this  would  be 
wholly  impracticable.  We  hold,  therefore,  purchasers  are  not 
bound  to  look  beyond  the  judgment  or  decree,  and  the  legal 
effect  it  may  have  on  the  title  which  is  the  subject  of  in- 
quiry." 28 

§  501.  Process.  Equity  suits  are  commenced  by  the  filing 
of  a  bill  or  petition  in  the  office  of  the  clerk  of  the  court  in 

25  Leitch  v.  Wells,  48  N.  Y.  585;  general  doctrine  that  one  buying 
Fissler's  Appeal,  75  Pa.  St.  483 ;  land,  of  which  the  record  title  is  in 
Loomis  v.  Riley,  24  111.  307.  the  grantor,  is  not  bound  by  equi- 

26  Hayden  v.  Bucklin,  9  Paige,  ties  stated  in  deeds  unconnected 
572.  with    the    chain     of    title,    and    of 

27  Dugan  v.  Follett,  100  111.  581.       which     he     is     not     informed.     See 
28Dugan  v.  Follett,   100  111.  581.       Odle  v.  Odle/73  Mo.  289. 

This  rule  is  in  consonance  with  the 


59-i  ABSTRACTS    OF    TITLE. 

which  the  action  is  brought,  which  bill  contains  a  statement  of 
the  facts  constituting  the  complainant's  claim,  and  a  prayer  for 
such  relief  as  he  may  deem  himself  entitled  to.  Upon  the  fil- 
ing of  this  bill  or  petition  process  issues  to  compel  the  appear- 
ance of  the  defendants.  This  is  the  ancient  chancery  pro- 
cedure, and  process  issued  before  the  filing  of  a  bill,  or  service 
made  prior  thereto,  is  a  nullity.29  The  codes  substitute  a  new 
procedure,  by  which  the  issuance  of  summons  is  made,  in  or- 
dinary cases,  the  commencement  of  the  action,30  but  the  law 
governing  the  service  of  process  is  substantially  the  same,  and 
the  court  in  either  case  derives  its  jurisdiction  only  from  a  full 
and  technical  compliance  with  the  statute.  A  discussion  of 
practice  is  foreign  to  the  purposes  of  this  work,  and  in  speaking 
of  these  matters  reference  can  only  be  made  to  the  commonly 
accepted  principles  which  are  recognized  by  all  courts  and 
are  applicable  to  all  systems  of  practice,  trusting  that  the  points 
given  will  suggest  others  depending  upon  local  rules  and  deci- 
sions. The  process  of  a  court  has  vitality,  and  may  be  enforced, 
anywhere  within  its  jurisdiction,  but  beyond  that  it  is  of  no 
effect.  Hence,  a  service  outside  of  its  jurisdiction  confers  no 
rights  over  the  person  of  the  defendant.31 

§  502.  Formalities  of  a  Summons.  It  is  not  necessary 
in  the  abstract  of  court  records  to  set  out  minutely  all  the 
papers  and  files,  and  as  a  rule  the  practical  purposes  of  the  ab- 
stract can  be  accomplished  by  references  and  partial  statements. 
The  summons,  however,  is  vital,  and  unless  there  has  been  an 
appearance,  the  formal  requisites  are  jurisdictional.32  When 
the  summons,  as  under  the  old  chancery  practice,  issues  out  of 
the  court  where  the  bill  has  been  filed,  it  must  be  with  proper 

29  Story's  Eq.  PI.  §7;  Barton's  some  of  the  States  the  statute  pro- 
Suit  in  Eq.,  39;  Hodgen  v.  Guttery,  vides  for  actual  personal  service 
58  111.  431.  without  the  State,  and  permits  the 

30  This    is    the    procedure    of   the  notice    thereby    given    to    supersede 
New    York    code    and    all    systems  the  necessity  of  publication, 
based    thereon.     This    is    also    the  32  Orendorff  v.   Stanberry,  20  111. 
procedure   in   legal   actions   at  com-  89;    Miller   v.   Handy,   40    111.   448; 
mon  law.  Garland    r.    Britton.    12    111.    23?} 

31  Isett  V.  Stuart,  80  111.  404.     In  Besemer   V.  The  People.   15  111.  4:!!) 


ACTIONS    AXD    PROCEEDINGS. 


595 


venue,33  for  a  defendant  has  a  right  to  know  when  and  where 
he  is  required  to  appear,  and  when  the  writ  fails  to  furnish 
such  information,  it  is  void.34  It  must  run  in  the  name  of  the 
"  People  "  or  the  "  State,"  35  or  it  is  void,30  and  must  be  ad- 
dressed to  the  sheriff  of  the  county  in  which  the  defendant  re- 
sides if  he  be  a  resident  of  the  State.37  It  must  correctly  de- 
scribe the  parties  to  the  suit,38  and,  when  required  by  statute, 
the  cause  for  which  it  is  brought,39  and  must  be  made  returnable 
to  a  particular  term.40  When  issuing  from  a  court  it  must 
be  tested  in  the  name  of  the  clerk 41  or  presiding  judge,42 
and  must  bear  teste  of  the  day  on  which  it  is  issued.43 

By  some  of  the  codes,  the  summons  may  be  issued  bv  an 
attorney  of  the  court,  and  need  not  be  signed  by  the  clerk  or 
judge,  but  must  be  subscribed  by  the  attorney  who  causes  same 
to  issue.44     When  regarded  as  the  direct  mandate  of  the  court, 


33  Orendorff  r.  Stanberry,  20  111. 
89.  And  this  rule  has  not  been 
changed  by  the  codes-.  Blanchard 
V.  Strait,  8  How.  (X.  Y.)  84.  The 
force  and  effect  of  a  venue  in  a 
judicial  writing  is  to  indicate  the 
county  wherein  the  court  is  act- 
ing: Van  Dusen  v.  People,  78  111. 
645. 

34  Orendorff  v.  Stanberry,  20  111. 
89.  A  code  summons  requiring 
the  defendant  to  serve  a  copy  of 
his  answer  upon  "  the  subscriber," 
the  plaintiff's  attorney,  at  a  place 
designated,  is  sufficiently  certain 
under  the  code,  and  confers  juris- 
diction :  Hotchkiss  r.  Cutting,  14 
Minn.  537. 

35  Curry  v.  Hinman.  11  111.  420. 
The  style  is  generally  constitu- 
tional. 

36  Ferris  V.  Crow,  5  Gilm.  (111.) 
90. 

37  A  summons  issued  by  the  clerk 
of  one  county,  addressed  to  the 
sheriff  of  another  county,  command- 
ing him  to  summon  a  defendant  in 
his  county  to  appear  at  Lincoln,  in 


said  county,  is  void:  Gill  v.  Hob- 
lit,  23  111.  473,  and  see  Kennedy 
V.  People,  15  111.  418.  The  N.  Y. 
code  summons  is  addressed  simply 
to  the  defendant. 

38  Richardson*  V.  Thompson,  41 
111.  202;  Eogers  v.  Green,  33  Tex. 
C61. 

39  McDermid  v.  Russell,  41  111. 
489;  King  r.  Blood,  41  Cal.  314. 

40  A  summons  returnable  to  the 
wrong  term  confers  no  jurisdiction 
on  the  court  to  render  a  judgment 
in  the  action:  Culver  r.  Phelps, 
130  111.  217. 

41  Xorton  r.  Dow,  5  Gilm.  459; 
Costly  v.  Driver,  45  Ala.  230;  Wil- 
son  r.   Owen.   45   Ala.  451. 

42  Brown  v.  Parker,  15  111.  307; 
Howerter  v.  Kelly.  23  Mich.  337. 

43  Brown  v.  Parker,   15  111.  307. 
4  4  See     Howard's      X.      V.      Code 

(1859),  102.  This  is  the  method 
in  most  of  the  States  which  employ 
the  X.  Y.  code. 

45  Besemer  v.  People,  15  111.  439; 
Morrison  V.  Silvcrhurgh,  13  111. 
551. 


596  ABSTRACTS    OF    TITLE. 

a  seal  is  indispensable  to  its  validity/5  but  under  the  code  sys- 
tem this  is  unnecessary.46 

§  503.  Service.  To  bind  a  person  by  a  judicial  sentence 
he  must  be  a  party  to  the  proceeding,  and  must  have  either 
actual  or  constructive  notice  thereof,47  or  enter  his  appearance.48 
These  matters  are  jurisdictional,  and  where  the  service  of  the 
summons  is  insufficient  to  confer  jurisdiction,  the  judgment 
or  decree  as  to  the  defendants  is  a  nullity,49  and  open  to  attack 
in  all  collateral  proceedings.50  The  return  of  the  officer  serv- 
ing the  process  must  show  strict  compliance  with  the  statute, 
before  the  court  can  obtain  jurisdiction  of  the  person,51  and  this 
has  reference  both  to  the  time,  the  manner,  and  the  person  on 
whom  the  service  was  made.52 

When  personal  service  can  not  be  made,  by  reason  of  the 
absence  of  the  defendant,  or  because  he  can  not  be  found,  a 
substituted  service  is  prescribed  by  statute,  but  in  making  this 
service,  as  well  as  in  case  of  constructive  service  by  publica- 
tion, the  requirements  of  the  statute  must  all  be  strictly  com- 
plied with,  and  this  must  affirmatively  appear  on  the  record.53 
Service,  or  constructive  notice,  by  publication,  was  only  obtain- 
able formerly  on  the  return  of  process  non  est  inventus,  and 
such  is  still  the  rule  in  some  States,  but  ordinarily,  where  an 
affidavit  of  non-residence  has  been  filed  a  constructive  service 
by  advertisement  may  be  obtained.54 

46  For  a  brief  period  a  U.  S.  52  Botsford  v.  O'Conner,  57  111. 
Rev.  stamp  was  required  on  all  72;  Hochlander  v.  Hoehlander,  73 
process,  but  this  law  was  repealed  111.  618;  Mack  v.  Brown,  73  111. 
March  2,  1867;  see  14  U.  S.  Stat.  295;  Rankin  v.  Dulaney,  43  Miss. 
at  Large,  475.  197;    York    v.    Crawford,    42    Miss. 

47  Borders  V.  Murphy,  78  111.  81;  508;  Hendley  V.  Baccus,  32  Tex. 
Easterly  v.  Goodwin,  35  Conn.  273.  328;  Vandiver  V.  Roberts,  4  W.  Va. 

4S  Barker    V.    Ins.    Co.,    24    Wis.  493 ;  Melvin  v.  Clark,  45  Ala.  285. 

630.  53  Boyland    v.    Boyland,     18     111. 

49  Botsford  v.  O'Conner,  57  111.  551 ;  Miller  v.  Mills,  29  111.  431 ; 
72.  Wells   V.   Stumph,   88   111.   56;    Wil- 

50  Haywood  v.  Collins,  60  111.  Hams  v.  Downes,  30  Tex.  51 ; 
328.  Brownfield  v.  Dyer,  7  Bush    (Ky.), 

51  Cost  v.  Rose,  17  111.  276;  Par  505;  Mullins  V.  Sparks,  43  Miss, 
don  v.  Dwire,  23  111.  572;  People  V.  129. 

Bernal,  43   Cal.  385.  54  Millett   v.   Pease,   31    111.   377; 


ACTIONS    AND    PEOCEEDIXGS.  597 

In  all  cases  of  constructive  service  the  statute  must  be  strictly 
pursued,  and  as  the  affidavit  of  non-residence  constitutes  the 
basis  of  an  order  of  publication,  whenever  such  order  is  re- 
quired, it  is  essential  that  such  affidavit  should  appear  of  rec- 
ord,55 and,  as  a  matter  of  course,  be  properly  exhibited  in  the 
abstract  in  connection  with  the  order  of  publication,56  notice, 
and  publisher's  proof  of  publication. 

It  is  now  generally  conceded  that  the  State  possesses  the 
power  to  provide  for  the  adjudication  of  land  titles  within  its 
limits,  as  against  non-residents  who  are  brought  into  court  only 
by  publication,  and  decrees  based  on  such  constructive  service 
are  as  valid  and  effectual  as  if  rendered  with  the  parties  actually 
appearing.57 

§  504.  Proof  of  Service.  The  service  of  a  summons  is 
ordinarily  proved  by  the  return  of  the  sheriff  or  other  person 
serving  it,58  or  by  the  admission  of  the  person  so  served,59  but 
in  all  cases  where  the  record  shows  an  appearance  of  the  defend- 
ant, this  becomes  a  matter  of  minor  importance,  for  a  general 
appearance  is  an  admission  on  the  part  of  the  defendant  that 
he  has  been  regularly  brought  into  court,  and  subjects  him  to 

Tibbs  v.  Allen,  27  111.  119;  Coons  v.       a    formal    order    in    each    case.     It 
Throckmorton,  25  Ark.  60.  will   not  be  necessary  to  show  the 

55  Bardsley    v.    Hines,    33    Iowa,       rule  in  the  abstract. 

157;     Merrill    v.    Montgomery,    25  57  Perkins   v.   Wakeham,   86   Cal. 

Mich.     73;     Byrne    v.    Roberts,    31  580;    McLaughlin    v.    McCrory,    55 

Iowa,  319;  Coons  v.  Throckmorton,  Ark.  442;  Adams  V.  Cowles,  95  Mo. 

25    Ark.    60;    Millett    v.    Pease,    31  501. 

HI.   377.     In  this  case,  while  hold-  58  No  person   can   execute  a  pro- 

ing  the  affidavit  to  be  the  basis  of  cess  in   his  own  favor:     Snydacker 

the  order,  it  is  yet  held,  that  where  v.  Brown,   51   111.  357.     The  return 

the  record  shows  a  notice  by  publi-  of   a   process   server,   if   other   than 

cation,  which  recites   the  fact  that  an  officer,  must  be  under  oath. 
an  affidavit  was  duly  filed,  but  does  59  An    admission    of    service    is 

not  appear  of  record,  the  court  will  not    very    satisfactory    as    evidence, 

presume  that  the  affidavit  was  duly  The   court   takes   judicial   notice   of 

filed  ;  and  see  Tompkins  v.  Wiltber-  the  signatures  of  its  officers  but  is 

ger,  55  111.   385.  not   presumed  to  know  the  signature 

56  A  rule  of  court  providing  for  of  a  party  defendant,  who  lias  not 
publication  on  filing  an  affidavit  of  appeared:  Litchfield  V.  Burwell,  5 
non-residence  may  take  the  place  of  How.    (N.    Y.)    341. 


598  ABSTRACTS    OF    TITLE. 

the  jurisdiction  thereof.60  In  such  cases  it  would  seem  that 
a  passing  reference  to  the  issuance  and  service  of  summons 
would  be  sufficient,  though  many  attorneys  require  a  synopsis 
or  full  transcription  of  the  officer's  return,  particularly  in  the 
case  of  infants,  lunatics,  and  persons  under  disability,  when  the 
appearance  is  by  guardian.  But  where  a  plaintiff  undertakes 
to  obtain  a  judgment  or  decree  against  a  defendant,  without  any 
appearance  by  the  latter,  either  in  person  or  by  attorney,  he  is 
required  at  his  peril  to  bring  such  defendant  within  the  juris- 
diction of  the  tribunal  in  which  he  is  suing,  or  his  proceedings 
will  be  set  aside  as  irregular,  and  totally  defective  and  void.61 
In  the  case  of  joint  defendants  this  matter  is  particularly  im- 
portant, for,  although  the  plaintiff  may  generally  proceed 
against  the  defendants  served,  no  valid  judgment  can  be  ren- 
dered against  those  not  served,  except  that  service  upon  one 
member  of  a  firm  has,  in  some  instances,  been  held  to  give  the 
court  jurisdiction  over  all  the  members  in  an  action  brought 
against  the  firm.62 

Whenever,  therefore,  the  record  shows  no  appearance  it  is 
advisable  that  all  matters  relating  to  service  be  set  out  minutely 
and  in  detail.  In  case  of  personal  service,  show  the  return 
briefly,  but  always  display  enough  to  show  the  jurisdictional 
essentials ;  who  were  served,  when,  where,  etc.     In  case  of  sub- 

60  Dix    v.    Palmer,    5    How.     (N.  judice  and  void.     In  the  other,  the 

Y. )  233;  Webb  v.  Mott,  6  How.   (N.  defective    service   gives   the    defend- 

Y. )   439;  Barker  v.  Ins  Co.,  24  Wis.  ant  actual  notice  of  the  proceedings 

630;      Bustamete     V.     Bescher,     43  against  him,   and  the   judgment   or 

Miss.    172;    Bowin  V.   Sutherlin,   44  decree,  although  erroneous,  is  valid 

Ala.   278;   Liles  v.   Woods,   58   Tex.  until  reversed  by  a  direct  proceed- 

416;  Abbott  v.  Semple,  25  111.   107.  ing    in    an    appellate    jurisdiction; 

t:i  Williams  V,  Valkenburg,  16  and  its  validity  can  not  be  collater- 
How.  (N.  Y.)  144;  Roberts  v.  ally  called  in  question:  Harrington 
Stowers,  7  Bush  (Ky.),  295;  Grant-  v.  Wofford,  46  Miss.  31. 
ern  v.  Rosecierrance,  27  Wis.  488.  62  Anderson  v.  Arnette,  27  La. 
A  distinction  is  sometimes  made  Ann.  237.  Yet  service  upon  an  al- 
between  a  total  want  of  service  of  leged  partner,  the  fact  of  partner- 
process,  and  a  defective  service,  as  ship  not  being  established,  does  not 
to  their  effect  in  judicial  proceed-  confer  jurisdiction  upon  another 
ings.  In  the  one  case  a  judgment  allogsd  partner:  Nixon  v.  Downey, 
or  decree  is  held  to  be  coram  non  42  Iowa,  78. 


ACTIONS    ANT)    PROCEEDINGS.  599 

stitntod  service  show  the  return  entire ;  that  is,  a  literal  trans- 
cription. If  the  service  is  effected  by  notice  and  publication, 
show  a  synopsis  of  the  notice  and  proof  of  publication.03  The 
advertisement  in  the  latter  case  performs  the  same  office  as  pro- 
cess,04 and  it  is  not  enough  that  the  decree  recites  that  the 
defendant  has  been  duly  served,  or  that  he  has  been  regularly 
notified ;  the  record  should  show  process  or  notice  duly  served 
or  published  and  a  decree  pro  confesso  is  rendered  erroneous 
and  invalid  when  these  particulars  are  wanting.05 

A  decree  rendered  upon  the  constructive  notice  afforded  by 
publication  is  not  regarded  in  many  States  as  final  or  conclusive 
upon  the  subject  presented  for  considerable  time  after  its  rendi- 
tion, and  is  liable  to  be  vacated,  in  the  interests  of  justice,  where 
application  is  made  in  apt  time,  and  of  these  facts  purchasers  or 
others  dealing  with  the  title  to  land  are  bound  to  take  notice.06 

§  505.  Affidavit  and  Order  of  Publication.  The  statute 
authorizing  constructive  service  by  publication,  in  case  of  non- 
resident or  absent  parties,  requires  certain  facts  to  be  presented 
by  affidavit  to  the  court  in  which  the  action  is  pending,  where- 
upon, if  such  presentation  is  satisfactory  to  the  court,  an  order 
is  made  for  the  publication  of  the  summons  or  notice  to  appear, 
which  not  only  prescribes  the  period  but  designates  the  paper 
in  which  the  publication  is  to  be  made,  while  if  the  residence 
of  the  defendant  be  known  such  order  further  provides  for  an 
additional  notice   through   the   mail.      The   service   is   deemed 

63  Proof  of  the  publication  of  the  jurisdiction  of  a  court  whose  de- 
summons  for  "  six  successive  crees  recite  due  process  and  service 
weeks  "  has  been  held  insufficient  and  such  recitals  are  generally  held 
to  show  a  publication  "  once  each  to  be  prima  facie  evidence  of  the 
week"  for  the  period  named:  See  jurisdictional  facts:  Turner  V. 
Godfrey  v.  Valentine,  39  Minn.  Jenkins,  79  111.  228;  Tompkins  v. 
336.  Wiltberger,  5G  111.  385.     Mere  cler- 

64  Randall  V.  Songer,  16  111.  27;  ical  omissions,  provided  sufficient 
Chinch    v.   Furniss,  64  N.  C.  659.  is  shown  to  confer  jurisdiction,  are 

65  Reddick  v.  State  Bank,  27   111.  usually  of  little  consequence:     Car- 
145.     This  doctrine  has  been   some-  ter  V.   Rodewold,   108  111.   351. 
what    modified    by    later    decisions,  66  Southern   Bank  V.  Humphreys, 
and    every    reasonable    presumption  47   111.  227. 

will    be    indulged    in    favor    of    the 


600  ABSTRACTS    OF    TITLE. 

complete  at  the  expiration  of  the  time  prescribed  by  the  order 
of  publication,  and  the  proof  is  afforded  by  the  affidavit  or  cer- 
tificate of  the  printer,  and  an  affidavit  of  deposit  in  the  post- 
office,  if  such  deposit  has  been  made.67 

These  preliminaries,  though  often  overlooked  when  compil- 
ing an  abstract,  are  as  important  as  any  step  in  the  action  and 
upon  their  due  performance  the  validity  of  the  subsequent  pro- 
ceedings rests.  It  is  not  sufficient  to  show  merely  the  affidavit 
of  publication,  for,  although  that  fact  is  an  important  ingredi- 
ent of  the  service,  it  is  comparatively  of  no  force  or  effect  unless 
connected  with  the  preliminary  steps  which  occasioned  it.  Pub- 
lication of  a  summons  in  a  newspaper  is  not  service  of  the  sum- 
mons, nor  is  an  affidavit  of  such  publication  proof  of  service. 
To  be  of  any  avail  the  publication  must  have  been  made  in  a 
paper  designated  by  the  order  of  the  court  or  judge  and  for 
the  period  prescribed  by  such  order.68  The  terms  of  such  order 
must,  therefore,  be  connected  with  the  affidavit,  or  the  proof  will 
amount  to  nothing.69  As  the  printer  is  not  supposed  to  know 
anything  of  the  order,  and  is  not  called  upon  even  to  refer  to 
it  in  his  affidavit,  it  becomes  necessary  in  making  up  the  ab- 
stract to  include  the  substance  of  the  affidavit  of  non-residence 
and  the  order  of  the  court  made  upon  it,  otherwise  it  will  dis- 
close no  proof  of  service.  Where  publication  is  made  pursu- 
ant to  a  general  rule  of  court,  while  the  service  must  comply 
with  the  requirements  of  the  rule,  it  is  not  necessary  to  set  out 
the  rule  itself. 

§  506.  Appearance  Without  Process.  A  party  may  en- 
ter his  appearance  in  a  pending  action  without  service  of  sum- 
mons, and  such  appearance,  voluntarily  made,  either  in 
person  or  by  attorney,  binds  him  with  respect  to 
any  judgment  or  decree  that  may  be   rendered   in  the  case. 

67  This  matter  is  statutory  and  must  comply  with  the  rule;  usu- 
varies  with  locality.  ally,   however,  the  publication   may 

68  This  is  often  provided  for  by  be  made  in  any  "  secular  newspaper 
a  general  rule  of  court  which  stands  of   general    circulation." 

for  a  special  order  in  the  particular  69  Galpin  V.  Page,   3   Sawyer    (C. 

case.      Of    course,    the    publication       Ct. ),  93. 


ACTIONS    AND    PROCEEDINGS.  G01 

Where,  however,  the  appearance  is  by  attorney  and  without  serv- 
ice of  process,  this  is  a  fact  that  should  be  noted,  for  while 
all  of  the  presumptions  are  in  favor  of  a  judgment  based  on 
such  an  appearance,70  yet,  if  the  appearance  was  in  fact  un- 
authorized the  judgment  may  be  vacated  on  motion  or  its  en- 
forcement enjoined.71 

§  507.  Master's  and  Referee's  Reports.  Frequently 
during  the  progress  of  a  cause  a  reference  is  made  to  a  master 
or  referee  to  ascertain  some  particular  fact,  or  for  a  trial  of 
the  whole  issue,  and  the  manner  in  which  the  master  or 
referee  presents  his  opinion  and  the  result  of  his  inquiries  to 
the  court,  is  either  by  a  certificate  or  report.  A  certificate  is  a 
simple  notification  of  a  fact,  or  of  an  opinion,  or  a  conclusion; 
reports  are  the  results  of  his  inquiries  with  his  findings  or  con- 
clusions, and  opinions  thereon.72  References  are  more  fre- 
quently made  to  state  an  account,  or  for  other  matters  arising 
out  of  commercial  transactions,  but  occasionally  references  of 
title  are  made,  and  these  will  sometimes  require  notice  in 
making  up  a  synopsis*  of  chancery  proceedings.  All  reports, 
upon  which  are  founded  decrees  or  decretal  orders,  require 
confirmation.  Judicial  sales  are  frequently  conducted  by  a 
master  or  commissioner,  and  a  circumstantial  report  of  such 
.sale  must  be  rendered  to  and  confirmed  by  the  court  ordering 
same,  and  though  it  is  not  usual  to  abstract  this  report,  where 
the  decree  and  deeds  are  shown,  some  allusion  must  be  made 
to  it. 

§  508.  Verdicts.  The  original  chancery  practice  did  not 
contemplate  the  intervention  of  a  jury,  but  all  facts  were 
found  by  the  court.73  Issues  were  sometimes  made  up  and 
submitted  to  a  jury,  and  such  is  still  the  general  practice, 
though  under  the  codes  all  questions  of  fact  in  litigated  cases, 
whether  the  action  is  legal  or  equitable,  may  be,  and  usually 

70  Corbitt      v.      Timmerman,      95       Barb.   Ch.   Prac.   *544;   2  Dan.   Ch. 
Mich.    581;     Williams    v.    Johnson,       Prac.  934. 

112  N.  C.  424.  73  Oral    examinations    were    not 

71  Winters  v.  Mears,  25  Neb.  241.       formerly  permitted 

72  Smith's    Ch.    Prac.     *  161;     2 


602  ABSTRACTS    OF    TITLE. 

are,  the  subject  of  jury  trials.  The  verdict  of  a  jury  on  an 
issue  which  a  court  of  equity  has  directed  them  to  try  is 
advisory  merely,74  and  is  not  conclusive  on  the  court,75  who 
may  reverse  the  verdict  and  render  a  decree  opposed  to  the 
findings  of  the  jury.76  As  a  material  fact,  however,  when 
acted  upon  by  the  court,  the  verdict  should  be  appropriately 
noticed,  which  can  ordinarily  be  accomplished  by  a  statement 
of  the  issue  presented  and  the  finding  made  thereon.  In  legal 
actions  for  the  trial  of  title  to  land  the  verdict  or  finding  of 
the  jury  is  always  important  and  must  be  shown. 

§  509.  Abstract  of  Chancery  Proceedings.  In  prepar- 
ing minutes  of  equitable  actions  involving  title  much  nice 
discrimination  is  necessary  in  order  that  the  abstract  may 
show  a  perfect  resume  of  the  proceedings  and  all  the  material 
points  presented,  and  yet  not  become  unwieldy  or  burdensome. 
The  name  of  the  court  in  which  the  action  is  prosecuted ;  the 
title  of  the  cause;  case  number,  and  date  of  commencement 
of  the  action  come  first,  and  in  the  order  indicated.  Then  fol- 
lows a  brief  statement  of  the  material  parts  of  the  bill,  avoiding 
all  repetition  and  surplusage.  The  subsequent  steps  next  follow 
in  chronological  sequence  down  to  the  final  determination  or 
decree  which  is  usually  shown  in  full.  The  examples  given 
in  this  section  and  other  parts  of  this  chapter  will  fully  serve 
to  illustrate  the  matter.     Where  the  case  is  still  undetermined 

74  Quinby   V.    Conlan,    104    U.    S.  always  the  result  of  special  legisla- 

420;    Rusling  v.   Rusling,   35   N.   J.  tion    and    is    in    derogation    of   the 

Eq.    120;    MeGan    v.   O'Neil,   5   Col.  common-law   powers   of   a    chancery 

58.     It  would  seem  that  this  prin-  court. 

ciple     has      not      been      materially  75  Rusling   v.    Rusling,    35   N.   J. 
changed   by  the  code,  although  the  Eq.   120;    Marshall   v.  Marshall,   18 
forms  of  action  have  been,  and  that  W.   Va.    395;    Stanley   v.    Risse,   49 
the   verdict    is    only   in    aid   of   the  Wis.  219;  Contra,  Marvin  v.  Dutch- 
court,  and  does  not  have  the  same  er,  26  Minn.  391. 
effect    as    a    verdict    at    law.     See  76  Ivy  v.  Clawson,   14  S.  C.  267 
Stanley  v.  Risse,   49   Wis.   219.     In  Wakefield   v.   Bonton,   55   Cal.    100 
some  forms  of  equitable  actions  the  Smith   r.   Richardson,  5  Utah,  424 
verdict,  when   issues   are   sent   to   a  Swegle  V.  Wells,  7  Or.  222;  Gladsen 
jury,  has  the  same  binding  effect  as  v.  Whaley,  9   S.   C.   147;   Austin  V. 
a  verdict  at  law.     This,  however,  is  Bainter,  50  111.  308. 


ACTIONS    AND    PROCEEDINGS.  G03 

at  the  time  of  the  search,  or  has  not  yet  come  on  to  he  heard, 
the  examiner  sets  out  only  so,  much  as  appears  of  record, 
and  indicates  the  condition  of  the  cause  by  adding  the  word 
"  pending,"   thus : 


William  8 chafer 

vs. 

Henry  Brown. 


In  the  Circuit  Court  of  Cook  County,  Illinois. 

Case  No.  12,2,510. 

In  Chancery. 

Bill  filed  July  16,  181k,  sets 
forth  that  on  or  about  June  12, 
181k,  complainant  entered  into  a  contract  with  said  defendant 
to  convey  to  him  all  his  right,  title  and  interest  in  and  to 
certain  property  in  McHenry  Co.,  Ills.,  and  that  said  defendant 
agreed  to  convey  to  him  all  his  right,  title  and  interest  in  and 
to  Lot  30,  in  Block  3,  in  Bowman's  Subdivision  of  part  of 
the  East  half,  of  South  East  quarter,  of  North  East  quarter 
of  Sec.  6,  Town  39  North,  Range  Ik,  East  of  3d  P.  II.,  Cook 
County,  Ills. 

Prays,  that  said  defendant  be  adjudged  to  specifically  per- 
form the  said  contract,  and  to  convey  to  complainant  the  said 
premises,  and  to  furnish  an  Abstract  of  Title  to  said  property 
showing  clear  and  perfect  title  to  same,  and  that  defendant  be 
compelled  to  pay  to  complainant  the  damage  he  has  sustained 
by  his  refusal  to  perforin  said  contract,  etc. 

{Pending.) 

A  continuation  should  take  up  this  case  at  this  point,  and 
show  all  subsequent  proceedings,  thus : 

In  the  Circuit  Court  of  Cook  County,  Illinois. 
Case  No.  12,510. 
In  Chancery. 

The  following  proceedings  have 
been  had  in  this  cause  since  July 
18,  181k-      {Chancery  record  k®,  page  11.) 


Henry  Brown. 

vs. 
William   Shafer 


604   .  ABSTRACTS    OF    TITLE. 

Aug.  18,  181k,  suit  dismissed  at  complainant's  costs  for 
want  of  prosecution.77      (Costs  paid.) 

Where  more  direct  reference  to  a  former  examination  is 
deemed  desirable  the  following  form  may  be  used  •  in  a  con- 
tinuation : 


In  Circuit  Court  of  Cook  County,  Ills. 
Case    12,510. 


'William   Sliafer 

vs. 
Henry  Brown. 


Continuing  No.  8  of  an  exami- 
nation made   by  us   [or  by  any 
other    person]     dated    July    18, 
181 Jf.,  (and  hereto  attached.) 
Aug.   18,  181J/.,  dismissed  at  complainant's  costs  and  judg- 
ment.    Execution  No.  2,1+15  issued,  dated  Dec.  1,  lSllf.. 

The  further  examples  given  in  this  chapter  of  special  pro- 
ceedings in  the  different  chancery  actions,  will,  it  is  believed, 
furnish  sufficient  data  for  any  exigency  that  may  arise,  while 
the  examiner  will  have  no  difficulty  in  adapting  them  to  details 
or  differences  of  practice  in  his  own  State.78 

§  510.  Injunctions.  An  injunction  is  a  writ,  command- 
ing or  restraining  the  commission  of  some  act,  to  serve  the 
purposes  of  equity  and  good  conscience.  In  the  endless  variety 
of  cases  where  a  plaintiff  is  entitled  to  equitable  relief,  if  that 
relief  consists  in  restraining  the  commission  or  continuance 
of  some  act  of  the  defendant's,  a  court  of  equity  will  administer 
it  by  means  of  the  writ  of  injunction. 

Injunctions  are  rarely  shown  in  abstracts  of  title,  and  when 
shown  have  reference  usually  to  transitory  matters  which  affect 
the  title  only  incidentally,  being  connected  rather  with  the  use 

77  An  order  or  decree  dismissing  vs  In  connection   with   this   chap- 

a  suit  for   want   of   prosecution,   is  ter    the    reader    is    referred    to    the 

like  a  non-suit  at  law,  and  is  not  a  chapter  of  this  work  entitled  "  "Exe- 

bar    to    a    subsequent    suit    for   the  cution  and  Judicial   Sales." 
same   matter:     Porter  V.   Vaughan,. 
26  Vt.  624. 


ACTIONS    AND    PROCEEDINGS.  605 

and  occupation  of  the  land,  than  with  any  matter  which  goes 
to  the  title.  Temporary  injunctions  restraining  the  sale  of 
land  pending  litigation  79  will  sometimes  be  found,  as  well  as 
writs  restraining  the  action  of  public  officers,  who,  under  a 
claim  of  right,  are  proceeding  illegally  to  impair  the  rights  or 
injure  the  property  of  individuals  or  corporations,80  as  also, 
to  prevent  a  multiplicity  of  suits.  Injunctions  are  granted 
upon  motion  in  pursuance  of  the  statute  and  are  usually 
auxiliary  to  some  legal  proceeding  then  commenced  or  pend- 
ing, and  may  be  shown,  when  material  to  the  title,  either  in 
connection  with  such  pending  suits,  or  as  independent  exhibits. 
An  injunction  which  has  been  dissolved  does  not  call  for 
notice.  Perpetual  injunctions,  when  relating  to  matters  which 
directly  concern  title,  become  permanent  muniments,  and,  of 
course,  must  be  regularly  shown  in  connection  with  the  enjoined 
matter.  This  will  be  the  case  in  respect  to  rights  of  way 
appurtenant  to  land ;  81  or  of  deeds  declared  to  be  void,  when 
attempted  to  be  used  as.  evidence  of  title ;  82  and  of  judgments 
which  have  become  invalidated  for  any  reason.83  A  perpetual 
injunction  to  quiet  title  will  sometimes  lie  when  there  has 
been  no  trial  at  law ;  as  when  the  party  having  possession  is 
disturbed,  but  not  so  dispossessed  as  to  make  it  the  subject  of 
an  action  at  law.84 

79  Camp  v.  Bates,  11  Conn.  51;  way,  occupation  of  streets,  etc.: 
Sidener  v.  White,  46  Ind.  588;  Pettibone  V.  Hamilton,  40  Wis.  402; 
Fehrle  V.  Turner,  77  Ind.  530  (re-  Knox  v.  Police  Jury  of  Baton 
versing,   34   Ind.   300).     An   injunc-  Rouge,  27  La.  An.  204. 

tion    is    a    preventive    remedy    and  81  Truehart    v.    Price,     2    Munf. 

can  not  be  invoked  to   command  a  (Va.)    488. 

party   to    undo    what   he   has    done  82  Bushnell  V.  Harford,  4  Johns. 

or  restrain  him  from  doing  an  act  Ch.  302. 

which  he  is  alleged  to  have  already  83  Kruson     V.     Kruson,     1     Bibb 

done:       Wangelin    v.    Goe,    50    111.  (Ky.),  184;  Brinkerhoff  v.  Lansing, 

459.  4  Johns.  Ch.  69;  Gairity  v.  Russell, 

80  Smith  v.  Bangs,  15  111.  399;  40  Conn.  450;  Dalton  v.  Lamburth, 
Mclntyre  v.  Mclntyre,  80   111.   127;  9  Nev.  192. 

Keam  v.  Ash,  27  N.  J.  Eq.  57.  The  84  Trustees  of  Louisville  V.  Gray, 
writ  is  often  employed  in  disputes  1  Litt.  (Ky.)  148.  The  writ  of  in- 
between  the  civic  authorities  and  junction,  as  a  provisional  remedy, 
individuals     relative    to     rights    of  has    been    abolished    by    the    codes, 


606  ABSTRACTS    OF    TITLE. 

§  511.  Ejectment.  The  action  of  ejectment  is  said  to 
have  originated  at  some  period  uncertain  between  the  years 
1327  and  1377,  and  was  at  first  a  mere  action  of  trespass  to 
recover  damages  from  an  intruder  who  had  usurped  posses- 
sion.85 A  new  feature,  not  contemplated  by  the  original  writ, 
was  soon  introduced,86  for  the  purpose  of  enabling  the  plaintiff 
to  recover  the  term  as  well.  It  was  originally  brought  only  by 
a  lessee,  to  recover  posse  sion  of  the  lands  from  which  he  had 
been  ousted,  and  in  its  strictly  technical  sense  is  still  an  action 
for  the  recovery  of  the  possession  of  real  estate,  but  in  practice 
it  is  more  generally  used,  both  in  England  and  the  United 
States,  to  determine  the  title  to  lands,87  to  which  possession 
attaches  itself  as  an  essential  attribute.  Under  the  statute  it 
possesses  little  of  its  original  features,88  while  its  general  scope 
has  been  so  extended  that  it  is  competent  to  determine  almost 
every  question  that  can  arise  in  conflicting  titles.  It  is  now 
regarded  as  a  legal  remedy,89  to  be  prosecuted  only  by  the 
real  parties  in  interest,90  having  the  legal  title  to  the  land,91 
and  can  be  brought  only  against  the  person  in  possession  of 
the  premises,  if  they  are  occupied,92  or  against  a  person  claim- 
ing title,  etc.,  when  the  premises  are  vacant  and  unoccupied. 
It  is  used,  not  only  to  determine  the  title  of  parties  claiming 
from  the  same  source,  as  well  as  to  settle  conflicting  adverse 
titles  derived  from  independent  sources,  but  also  by  purchasers 

which  substitute  a  statutory  remedy  90  Hanson   v.   Armstrong,    22    111. 

by    order;    but    the    nature    of    the  442;  Thompson  v.  Schuyler,  2  Gilm. 

remedy  has  not  been  changed.  (111.)    271. 

85  Warvelle  on  Ejectment  4.     Et  91  Allen     v.     Smith,     6     Blackf. 
seq.  (Ind.)    527;     Morton   v.    Greene,   2 

86  Supposed  to  be  about  the  year  Neb.  441. 

1455.  92  Persons    in    possession   merely, 

87  Guyer  v.   Wookcy,   18   111.   536.       as     servants     or    employes    of    the 
ss  As    originally    administered    it       party    claiming    adversely,    are    not 

depended  upon  a  series  of  legal  fie-  occupants  within  the  meaning  of 
tions  and  feigned  issues:  3  Black.  the  law:  Chiniquy  r.  Catholic 
Com.  200.  Bishop,  41    111.    148. 

S9  Gillett  v.  Neganza.  13  Wis. 
472;  Guyer  V.  Wookey,  18  111.  53G; 
Joy  v.  Berdell,  25  111.  537. 


ACTIONS    AND    PROCEEDINGS.  G07 

under  execution  and  judicial  sales  to  obtain  possession  of  the 
property  purchased  and  extinguish  the  occupying  claimant's 
rights. 

At  common  law  a  judgment  or  decree  m  ejectment  is  not 
regarded  as  conclusive  in  respect  to  the  question  of  title,  but  as 
a  recovery  of  the  possession  without  prejudice  to  the  right, 
as  it  may  afterward  appear,  even  between  the  same  parties,93 
but  wherever  the  common  law  form  of  the  action  is  abolished, 
and  same  is  prosecuted  by  the  real  parties  in  interest,  in 
their  own  names,  the  judgment  is  an  estoppel  and  a  valid  bar 
to  any  subsequent  action,  unless  such  privilege  is  expressly 
given  by  statute.94  Where  a  recovery  is  had  against  the 
occupant,  the  judgment  binds  not  only  him,  but  all  persons  in 
privity  of v  estate  or  possession  with  him,95  and  concludes  them 
from  again  litigating  the  same  title,96  but  is  not  necessarily 
a  bar  to  a  subsequent  suit,  or  to  defenses  set  up  in  a  subsequent 
suit,  unless  the  titles  and  defenses  are  precisely  the  same  as  in 
the  first  suit.97 

Nor  does  a -judgment  in  ejectment  transfer  to  the  successful 
party  the  title  of  the  adverse  party,  but,  if  presented  in  the 
proper  manner,  whenever  such  adverse  title  is  drawn  in  issue, 
it  shuts  out  all  proof  of  same,  and  its  effect  bears  a  closer 
resemblance  to  an  extinguishment,  than  a  transfer  of  the  ad- 
verse title.  The  judgment  awards  the  possession  to  the  pre- 
vailing party,  because  he  had  the  title  at  the  commencement  of 
the  action,  and  because  the  losing  party  had  no  title,  or  not 
such  a  title  as  would  authorize  him  to  withhold  the  possession ; 
but  it  neither  directly  nor  indirectly  transfers  the  title.9S  Inas- 
much as  the  judgment  is  conclusive  on  the  rights  of  the  parties 
to  the  subject-matter  of  the  action  and  all  persons  claiming  by, 

93  Mitchell    v.  Robertson,   15  Ala.  defeated   party  may  have   a   second 

412;   Holmes  V.  Carondolet,  38  Mo.  trial  as  of  right. 

B51;    Smith    v.    Sherwood,    4    Conn.  95  Hanson   V.   Armstrong,   22    111. 

276;   Atkins  V.  Horde,   1   Burr.   114.  442;    Rodgers    V.    Bell,    53    Ga.    04; 

»4  Freem.      on     Judgts.     §     299;  State   v.    Orwig,    34    town.    112. 

Campbell    r.    Hall,    16   N.    Y.    575;  96  Amesti   v.  Castro.  49  Oal.  325. 

and  sec  Clarkson   v.  Stanehfield,  57  97Foster  v.  Evans.   51    Mo.  30. 

Mo.   573.     In   most  of  the  States  a  98  Mahoney  v.  Middleton,  41   Cal. 

41. 


608  ABSTRACTS    OF    TITLE. 

through  or  under  them  by  title  accruing  after  the  commence- 
ment of  the  action,"  the  abstract  should  fully  show  the  points 
presented,  their  relation  to  the  land,  and  the  final  disposition 
made,  which  may  all  be  easily  accomplished  by  a  full  synopsis 
of  the  pleadings,  the  verdict,1  and  the  judgment  or  decree. 

§  512.  Quia  Timet.  This  is  an  anticipatory  remedy  to 
quiet  the  title  to  lands,2  and,  unlike  ejectment,  is  brought 
only  by  the  person  in  possession  of  the  land,  or  one  claiming  to 
be  the  owner  when  the  lands  are  unimproved  or  unoccupied.3 
It  is  an  ancient  chancery  remedy,  but  in  most  of  the  States 
is  now  a  statutory  action,  resorted  to  for  the  purpose  of  quiet- 
ing the  title  or  the  removal  of  a  cloud,4  and  equity  is  invoked 
to  reach  persons  out  of  possession,  who  can  not'  be  compelled  to 
defend  their  right  at  law.5 

The  decree,  unless  otherwise  provided  by  statute,  is  not 
properly  a  judgment  in  rem,  establishing  title  to  the  land, 
but  operates  in  personam  only,  by  restraining  the  defendant 
from  asserting  his  claim,  or  by  directing  him  to  perform  some 
duty,  as  to  deliver  up  his  deed  to  be  canceled,  or  to  execute  a 
release,  etc.6 

The  possession  which  confers  jurisdiction  in  such  cases  must 
have  been  acquired  in  a  lawful  way,7  though  the  complainant 
is  not  bound  to  show  a  perfect  title  as  against  all  the  world,8 

99  Sheridan  v.   Andrews,   3   Lans.   •        2  Frequently    denominated    a   bill 

(N.  Y.)    129;   Amesti  V.  Castro,  4t)  of  peace. 

Cal.  325.  3  Gould     V.     Sternberg,     105     111. 

l  Where  the  verdict  fails  to  spe-  488;  Hardin  v.  Jones,  86  111.  313. 

eify   any   estate,  judgment   can   not  4  Hardin    v.    Jones,    86    111.    313; 

be  rendered   on  it:     Long  V.   Linn,  Collins    v.     Collins,     19     Ohio.     St. 

71   111.   152;  but  a  finding  that  the  468. 

plaintiff   is   the   owner   of   the   land  5  Barron  V.  Robbins,  23  Mich.  42; 

is    sufficiently    explicit    as    to    the  Alton    Ins.    Co.    v.    Buekmaster,    13 

plaintiff's   title:     Haddock   v.   Had-  111.  201. 

dock,  22  111.  384;  when  tried  by  the  c  Massie  v.  Watts,  6  Cranch    (U. 

court     the     finding    and     judgment  S.)    148;   Vandever   v.   Freeman,  20 

must  be  for  the  premises  described  Tex.   334.    Such  decrees  are  conclu- 

in  the  pleadings  and  the  character  sive  on  parties  and  privies :     Buck- 

of    the    estate    recovered    must    be  master  v.   Ryder,   12   111.   207. 

stated:     Harding  v.  Strong,  42   111.  7  Hardin  v.  Jones,   86   111.  313. 

148.  8Rucker  v.  Dooley,  49   111.  377; 


ACTIONS    AND    PKOCEEDIXGS.  809 

as  is  the  case  of  one  seeking  to  recover  possession,  and  the  title 
asserted  must  be  the  legal  title,9  or  at  least  the  complainant 
must  be  the  real  owner.10  An  equitable  claimant,  who  is  not 
in  possession,  can  not  invoke  the  aid  of  a  court  to  quiet  his  title 
and  remove  the  cloud  cast  upon  it  by  other  claimants.11 

Where  clouds  or  obscurations  of  any  kind  are  found  upon 
examination,  and  no  other  or  more  convenient  method  can 
be  employed  to  remove  them,  it  is  the  duty  of  counsel  to 
recommend  a  bill  to  quiet  title,  and  for  nearly  every  species  of 
colorable  interference  with  the  legal  title  this  furnishes  a  most 
efficient  remedy.  There  is  in  some  States  a  special  statutory 
action  to  establish  and  confirm  title  where  records  have  been 
destroyed.  The  general  features  of  these  actions  resemble  the 
action  to  quiet  title  above  described  but  the  scope  and  legal 
effect  is  broader.12 

§  513.  Partition.  Originally,  partition  could  only  be 
enforced  between  co-parceners,  but  by  statute  in  England  at  an 
early  day  compulsory  partition  was  allowed  between  joint 
tenants  and  tenants  in  common.  The  right,  as  exercised  there 
and  in  this  country  as  well,  is  given  only  to  one  having  an 
actual  or  constructive  possession  of  the  lands  sought  to  be 
partitioned.  Hence,  unless  the  statute  expressly  provides 
otherwise,  the  right  is  peculiar  to  those  having  a  present  estate, 
which  carries  with  it  the  right  of  possession,  and  necessarily 
excludes  remainder-men  and  reversioners,  who  have  simply  an 
estate  to  vest  in  possession  in  futuro.13  It  would  seem,  how- 
ever,   that   remainder-men   or   reversioners    in    fee   may    have 

Sehroeder  v.  Gurney,  17  N.  Y.  Sup.  12  Of   this    class   is    the   so-called 

Ct.  413.  "Burnt    Record    Act"    of    Illinois. 

9  San   Diego    V.    Allison,    46    Cal.  which    enables    parties   to   establish 

162;  O'Brien  v.  Creig,  10  Kan.  202;  title     against      all      persons,     even 

Fonda  v.  Sage,  48  N.  Y.  173.  though  unknown,  who  may  have  or 

io  Carlisle    V.    Tindall,    49    Miss.  claim  interests  in  the  land. 

229;    Lee   V.    Ruggles,   62    111.   427;  13  Sullivan  v.  Sullivan,  66  N.  Y. 

Eiden  v.  Eiden,  41  Wis.  460.  37;    Spight    v.    Waldron,    51    Miss. 

uHerrington     V.     Williams,     31  356;  Scarborough  V.  Smith,  18  Kan. 

Tex.  448.  399. 
39 


610  ABSTRACTS    OF    TITLE. 

partition  among  themselves  subject  to  the  unexpired  precedent 
particular  estate.14 

Partitions  occur  in  many  titles  of  long  standing,  particularly 
in  agricultural  lands  and  large  tracts,  and  as  the  interests 
of  minor  heirs  and  others  under  disability  are  frequently 
involved,  the  proceedings  should  show  affirmatively  a  full  statu- 
tory compliance.  The  procedure  is  substantially  the  same  in 
all  the  States,15  making  due  allowances  for  minor  differences 
of  practice,  and  involves  a  presentation  of  the  case  to  a  court 
of  competent  jurisdiction;  a  decree  denning  the  interests  of 
the  parties;  the  appointment  of  a  master  or  commissioners  to 
execute  the  decree  and  make  partition,  or  to  inquire  into  the 
expediency  of  same  or  susceptibility  of  the  property  to  parti- 
tion ;  the  report  of  the  commissioners ;  and  confirmation  or 
final  decree.  All  of  the  foregoing  steps  are  essential,  and  form 
regular  links  in  the  chain  of  title. 

It  is  customary  under  the  old  chancery  practice  to  decree  a 
mutual  interchange  of  deeds,  but  statutory  power  is  now  gen- 
erally given  to  confirm  title  in  the  parties  in  cases  of  jiartition, 
without  this  formality.16  The  decree  is  prima  facie  evidence 
of  title  in  favor  of  each  of  the  parties  to  the  particular  tract 
adjudged  to  him,17  and  conclusive  against  all  the  parties  before 
the  court,  and  their  privies.18  The  decree  under  the  statute 
may  be  final  and  conclusive  as  evidence  between  the  parties 
without  the  interchange  of  deeds,  either  by  the  parties  or  com- 
missioners, as  it  ascertains  all  the  rights  involved,  and  leaves 
nothing  to  be  done  but  to  carry  it  into  effect.  It  does  not, 
however,  vest  in  either  of  the  co-tenants  any  new  or  additional 
title  in  respect  of  the  respective  parcels  set  off  to  each,  but 

i4Scoville     v.     Hilliard,     48     111.  tition :     Hopkins   v.  Medley,  97   III. 

453.  402. 

15  Under    the    statute    the    action  16  Smith  ».  Crawford.  81  111.  296. 

for  partition  of  lands  in  a  suit  at  17  Word     V.    Douthett,    44    Tex. 

law  in  some  of  the  States,  and  not  365. 

in   equity,   and   is   a    substitute   for  18  Wright  r.  Marsh,  2  G.  Greene, 

the  old  common  law  action  of  par-  94;  Allie  v.  Schmitz,   17   Wis.   169; 

Smith  v.  Crawford,  81  111;  296. 


ACTIONS    AND    PKOCEEDINGS.  611 

simply  severs  the  unity  of  possession  theretofore  existing.19 
The  title  by  which  each  holds  his  divided  share  after  partition, 
is  the  same  as  that  by  which  his  undivided  interest  was  held 
prior  thereto.20 

Where  title  is  deduced  through  a  decree  of  partition  in  a 
suit  between  the  heirs  of  a  deceased  owner,  the  adjudication, 
where  the  court  has  jurisdiction,  finding  who  are  the  heirs  at 
law  of  the  deceased  owner,  is  prima  facie  evidence  of  who  were 
the  heirs  and  owners  of  the  land  whose  interests  were  allotted 
or  decreed  to  be  sold ;  and  in  an  action  of  ejectment  brought  by 
a  grantee  of  one  of  the  parties,  or  a  purchaser  at  the  sale 
against  a  stranger  to  the  partition  suit,  the  plaintiff  is  not 
bound  to  produce  evidence  of  heirship  outside  of  such  decree, 
in  the  absence  of  proof  to  the  contrary.  The  doctrine  that 
judgments  and  decrees  are  evidence  only  in  suits  between 
parties  and  privies  has  no  application,  it  would  seem,  in  such 
a  case.21  The  synopsis  which  follows  will  serve  to  fairly  indi- 
cate the  method  of  showing  a  partition,  and  will  also  serve  as 
a  precedent  for  other  chancery  actions : 


In  Circuit  Court   of  Cook  County,  Illinois. 
Case  No.  89,379. 
In  Chancery. 
Bill  filed  Oct.  2k,  1881. 
Represents     that     complainant 
'  and  defendant  Edward  C.   Walk- 
er, are  the  owners  each  of  an  un- 
divided  one    half   as   tenants   in 
common  of  Lot  80,  School  Trus- 
tees'   Subdivision    of    the    North 
part  of  Section  16,  Town  39  North,  Range  13,  east  of  3d  P. 
M.,    being   now   subdivided   into   sixteen   lots   and   known   as 
Secrist's  Subdivision  of  said  Lot  80.22 

i-»  Wade   v.    Deray,    50    Cal.    376.  21  Whitman  V.  Heneberry,  73   111. 

20  Carter    v.    Day,    59    Ohio    St.       100. 
96.  22  A  bill   in   equity   for  partition 


Robert  E.  Jones, 
vs. 
Edward  C.  Walker, 
Thomas  Cannon,  Sarah 
C.  Newhouse,  a  minor, 
and  James  W.  New- 
house,  her  guardian  and 
next  friend. 


612 


ABSTRACTS    OF    TITLE. 


That  defendants,  Sarah  0.  Neivhouse,  a  minor,  and  Thomas 
Cannon,  have  or  claim  to  have,  some  interest  in  or  lien  upon 
said  premises.23 

Prays  for  a  partition  and  division  of  said  premises  accord- 
ing to  the  rights  and  interests  of  the  parties  in  severalty,  if 
same  can  he  done  without  manifest  prejudice  to  the  owners 
thereof,  or  if  the  partition  can  not  he  made  without  such  man- 
ifest prejudice,  that  a  sale  thereof  he  made  according  to  law, 
and  that  the  proceeds  of  such  sale  he  distributed  among  the 
parties  respectively  entitled  thereto.2* 

Chancery  summons,  (to  Cook  county)  issued,  dated  Oct.  2h, 
1881,  to  all  said  defendants,  returnable  3d  Monday  of  Nov., 
1881,  and  duly  served  upon  all  said  parties.25 

Answer  of  defendant  Edward  C.  Walker  (and  replication 
thereto)  filed  Dec.  8,  1881. 

Default  of  defendants,  Thomas  Cannon,  James  W.  New- 
house,  guardian  and  next  friend,  taken  and  entered  Dec.   8, 


need  not  make  any  formal  deraign- 
ment  of  title  but  must  state  the 
complainant's  own  title  and  the 
title  of  the  defendants  so  that  it 
may  appear  that  they  hold  the  land 
as  cotenants.  It  should  also  show 
the  undivided  proportion  belonging 
to  each,  and  that  they  are  entitled 
to  a  partition. 

23  To  entitle  a  party  to  partition 
it  is  not  enough  for  him  to  show 
prima  facie  title  in  himself;  he 
must  also  make  persons  holding 
adverse  titles  parties  to  the  action 
or  show  that  they  are  not  under 
disability  and  that  their  title  is 
completely  barred:  Ross  V.  Cobb, 
48  111.   111. 

24  The  law  contemplates  two  modes 
of  proceeding  in  order  to  procure  a 
division  of  real  estate  held  in  joint 
tenancy  or  in  common :  ( 1 )  By  a 
partition  of  the  premises  without 
sale;  and   (2)  where  a  partition  can 


not  be  conveniently  made,  by  a  sale 
of  the  property. 

25  Very  frequently  counsel  desires 
to  know  the  manner  of  service,  par- 
ticularly where  persons  under  disa- 
bility are  interested,  and  in  such 
case  the  abstract  at  this  point 
should  disclose  such  method  by  a 
copy  or  summary  of  the  returns  of 
the  officers.  Where  all  the  parties 
enter  an  appearance  the  method 
above  given  is  sufficient,  but  when 
there  has  been  default,  it  is  essen- 
tial to  a  correct  opinion  that  the 
method  of  service  upon  the  non-ap- 
pearing parties  be  shown,  and  this 
can  only  be  done  by  a  copy  of  the 
return.  Stating  that  defendant 
was  "  personally  served  "  is  not  suf- 
ficient, as  a  very  slight  omission 
will  frequently  vitiate  the  return 
and  prevent  jurisdiction  from  at- 
taching. 


ACTIONS   AND    PROCEEDINGS.  613 

18S1,  (chancery  record  1^2,  pg.  198)  for  want  of  plea,  answer 
or  demurrer  to  bill,  and  Louis  Hunt  appointed  guardian  ad 
litem  for  said  minor  defendant,  Sarah  A.  Newhouse. 

Cause  referred  to  W.  Fenimore  Cooper,  Master  in  Chancery, 
Dec.  8,  1881,  to  take  proofs,  etc. 

Answer  of  said  minor  defendant  hy  her  guardian  ad  litem, 
filed  Dec.  8,  1881. 

Master's  report,  submitting  proofs  and  exhibits,  filed  Feb. 
20,  1882. 

Said  master  reports  that  the  material  facts  averred  in  the 
bill  have,  been  fully  proved,  and  said  complainant  is  entitled  to 
the  relief  prayed  for  in  said  bill. 

Decree  entered,  Feb.  20,  1882   (Chancery  Record  J/.2,  page 

m.) 

[Here  should  follow  the  decree  or  every  material  part  there- 
of.26] 

Where  the  decree  is  interlocutory  only,  the  subsequent  pro- 
ceedings, as  the  appointment  and  report  of  commissioners, 
offers  and  acceptances  of  parties,  together  with  the  final 
decree  and  confirmation  should  follow  in  regular  order.  What 
has  been  given  will  serve  to  fully  illustrate  the  method  in  which 
subsequent  steps  may  be  shown. 

Where  a  partition  occurs  in  the  history  of  a  title  counsel 
should  carefully  note  that  all  persons  shown  to  have  any  inter- 
est are  properly  joined  in  the  suit  as  parties.  For  this  purpose 
reference  should  always  be  made  to  the  proof  of  heirship,  made 
in  the  probate  of  the  ancestor's  estate,  where  the  title  is 
derived  through  descent,  and  the  names  of  the  heirs  compared 
with  those  in  the  partition  suit.  If  minors  arc  interested  the 
proceedings  will  be  void  as  to  them  unless  they  are  made 
parties  and  personally  served  with  process.27 

§  514.     Specific  Performance.     Equity  will  enforce  spe- 

20  See  "  Judgments  and  Decrees  "  "~  Terrell    v.   Weymouth,   33   Fla. 

for  a  precedent  of  a  decree.  255. 


614  ABSTRACTS    OF    TITLE. 

cific  performance  of  agreements  relating  to  lands ;  2S  compel 
conveyance  of  land  purchased,29  either  by  the  vendor  or  his 
heirs ;  30  or  where  specific  performance  can  not  be  enforced, 
will  give  other  adequate  relief.31  The  essential  conditions  of 
such  contracts  are:  That  they  be  made  by  competent  parties, 
willingly  entered  into ;  32  that  the  terms  are  certain  and  well 
defined ;  33  be  founded  upon  sufficient  consideration ;  34  and  the 
party  seeking  its  performance  must  fulfill  his  obligations  under 
it.35  The  contract  must  further  be  lawful  in  its  character,36 
and  such  as  a  court  can  enforce.37  As  this  matter  occurs  most 
frequently,  in  connection  with  title,  in  actions  growing  out  of 
agreements  to  deed,  it  is  advisable,  that,  in  case  performance 
has  been  decreed  and  consummated,  a  rather  full  synopsis  be 
given  of  all  the  material  parts  of  the  pleadings ;  master's  report, 
if  there  has  been  a  reference ;  and  of  the  final  decree.  If  per- 
formance has  been  denied,  and  the  contract  or  agreement  is  of 
record,  the  same,  together  with  a  brief  notice  of  the  action,  may 
be  shown  as  a  special  appendix. 

Jn  addition  to  actions  in  the  Circuit  Court,  it  is  provided 
in  some  States  that  when  any  deceased  person  was  bound  by 
a  contract  in  writing  to  convey  any  real  estate  a  specific  per- 
formance by  the  personal  representatives  of  such  deceased 
person  may  be  decreed  in  the  probate  court,  in  all  cases  where 
the  deceased,  if  living,  might  be  compelled  to  execute  such 
conveyance.  The  jurisdiction  in  this  event  is  obtained  by 
petition  setting  forth  the  jurisdictional  facts,  and  of  notice 
duly  given   in   accordance   with   the    statute.       The     petition, 

28Kerfoot     i\     Breckenridge,    87  336;     Gigos    v.    Cochran,    54    Ind. 

111.  205.  593. 

29  Marling  v.  Marling,  94  W.  34  Cheney  V.  Cook,  7  Wis.  413; 
Va.  79.  Smith  v.  Wood,   12  Wis.   382. 

30  Bennett  V.   Waller,  23   111.   97.  35  N.    W.    Iron    Co.    r.    Mead,    21 

31  Woodward  V.  Harris,  2  Barb.  Wis.  474;  Ishmeal  r.  Parker,  13 
439;   Oliver  v.  Croswell,  42  111.  41.  111.  324. 

32  Johnson  v.  Dodge,  17  111.  433;  36  McClurken  r.  Detrieh,  33  111. 
Taylor  v.  Merrill,  55  111.  52.  349;   Hooker  v.  De   Palos,   28   Ohio 

33  Sehmeling   v.   Kriesel,  45   Wis.  St.  251. 

357 ;   Colson  v.  Thompson,  2  Wheat.  37  McClellan    V.    Darrah,    50    111. 

249. 


ACTIONS    AND    PROCEEDINGS.  615 

notice,  proof  of  service  and  decree,  should  precede  or  supple- 
ment the  administrator's  or  executor's  deed  whenever  it  is 
shown  in  the  abstract.38 

§  515.  Redemption.  Bills  to  redeem,  though  formerly 
of  common  occurrence,  are  now  rarely  employed,  from  the 
fact  that  the  fundamental  law  concerning  mortgages  has  been 
radically  changed,  and  the  necessity  of  equitable  interference 
to  restore  the  mortgagor's  rights  no  longer  exists  save  in  a  few 
instances.  After  the  law  day  has  passed  the  status  of  the 
mortgagor's  title  is  substantially  the  same  as  it  was  before, 
and  until  foreclosed  by  legal  methods  the  right  to  redeem  by 
simple  payment  is  unimpaired.  Such,  at  least,  is  the  recog- 
nized law  in  a  majority  of  the  American  States.  But  when  a 
deed,  though  in  fact  given  as  security  only,  is  absolute  on  its 
face,  and  purports  to  convey  an  absolute  estate  in  fee,  the  mort- 
gagor, to  assert  his  right  of  redemption  and  become  reinvested 
with  his  former  title,  must  still  make  application  to  a  court 
of  equity  by  a  bill  to  redeem,  or  such  other  similar  remedy  as 
the  statute  has  provided.  In  like  manner,  if  a  mortgagee, 
having  entered  for  condition  broken,39  refuses  to  relinquish 
possession  of  the  mortgaged  lands  after  payment,  or  tender  of 
payment,  of  the  money  due  on  the  mortgage,  the  only  remedy 
of  the  mortgagor,  in  States  where  the  ancient  doctrine  still 
obtains,  in  order  to  regain  the  estate,  is  by  a  bill  to  redeem.40 
Ordinarily,  however,  this  latter  end  is  attained  by  a  direct 
proceeding  to  have  the  mortgage  canceled.  The  bill,  in  some 
form,    together    with    its    attendant    decree,    will    occasionally 

38  By  statutory  provision  in  many  effectual  to  pass  the  estate  con- 
States  a  certified  copy  of  the  order  tracted,  as  fully  as  if  the  contract- 
or decree  directing  the  execution  of  ing  party  himself  were  still  living 
the  conveyance,  is  required  to  be  and  then  executed  same:  R.  S. 
recorded  in  the  registry  of  deeds  Wis.  Ch.  167;  Minn.  Gen.  Stat. 
of  the  county  in  which  the  land  is  Ch.  58. 

situate,   and   such   certified   copy   is  39  This  is  still  permitted  in  a  few 

made    evidence    of    the    correctness'  States,  see  Chap.  XXII. 

of  the   proceedings,  and  of  the  au-  40  Parsons     v.     Wells,     17    Mass. 

thority   of   the   executor   or   admin-  419;    Sherman   v.   Abbott,   18   Pick, 

istrator    to    make    the    conveyance,  448. 
while  the  conveyance  itself  is  made 


610  ABSTRACTS   OF   TITLE. 

occur,  particularly  iu  case  of  equitable  mortgages,  and  as 
its  effect  upon  title  is  very  marked,  it  must  be  fully  set 
forth. 

§  516.  Foreclosure.  Probably  no  class  of  legal  proceed- 
ings so  often  figures  in  examinatious  of  title  as  actions  brought 
to  foreclose  and  enforce  liens,  and  particularly  is  this  true  in 
the  matter  of  the  foreclosure  of  mortgages.  A  foreclosure  in 
equity,  according  to  ancient  legal  theory,  is  a  proceeding  by 
which  the  mortgagor's  right  of  redemption  in  the  mortgaged 
premises  is  barred  or  closed  forever,  and  occurs  when  the  mort- 
gagor has  forfeited  his  estate  by  non-payment  of  the  money  due 
on  the  mortgage  at  the  time  appointed,  but  still  retains  the 
equity  of  redemption.41  In  such  case  the  mortgagee  may  call 
upon  the  mortgagor,  in  a  court  of  equity,  to  redeem  his  estate 
presently,  or,  in  default  thereof,  be  forever  closed  or  barred 
from  any  right  of  redemption. 

Two  general  methods  of  foreclosure  are  recognized  in 
equity,42  one,  called  strict  foreclosure,  whereby  the  mortgagee 
is  adjudged  the  absolute  owner  of  the  property ;  and  the  other, 
by  a  sale  of  the  property  under  the  direction  of  and  by  an  officer 
of  the  court,  in  which  case  the  proceeds  are  applied  to  the 
discharge  of  incumbrances,  according  to  their  priority,  and 
the  balance,  if  any,  paid  over  to  the  mortgagor.  Strict  fore- 
closure has  always  been  regarded  as  a  harsh  remedy,  and  is 
not  permitted  in  most  of  the  States,  nor  is  the  title  thus  acquired 
as  safe  as  when  made  by  the  ordinary  foreclosure  by  sale. 

The  title  derived  under  a  foreclosed  mortgage  is  evidenced 
by  the  mortgage  itself;  the  proceedings  and  decree  in  fore- 
closure; the  certificate  of  sale,  report,  and  confirmation;  and 
finally  by  the  selling  officer's  deed,  all  together  composing  one 
transaction.  Much  care  should  be  exercised  in  preparing  a 
synopsis   of  the  proceedings,   especially   in  regard   to  parties, 

41  1  Bou.  Law.  Diet.  599.  A  42  There  is  also  a  method  of  fore- 
court of  equity  will  never  decree  a  closure  at  law,  by  means  of  a  pro- 
foreclosure  until  the  period  limited  ceeding  by  scire  facias,  but  which, 
for  payment  has  expired:  Har-  from  its  inadequate  nature,  is  sel- 
uhaw  v.  McKesson,  66  N.  C.  266.  dom  resorted  to. 


ACTIONS   AND    PROCEEDINGS.  617 

and  counsel,  in  passing  title,  should  see  that  all  persons  who 
might  legally  assert  any  rights  in  relation  to  the  mortgaged 
premises  have  been  regularly  brought  in  and  properly  barred 
or  their  rights  adjusted.  This  will  include  not  only  the  mort- 
gagors, but  subsequent  mortgagees,  judgment  creditors,  lien 
holders,  and  all  other  persons  possessing  legal  rights  or  equities 
accruing  subsequent  to  the  lien  asserted  by  the  mortgage.43 
Where  the  foreclosure  is  recent,  and  particularly  when  the  title 
under  investigation  is  that  offered  at  the  foreclosure  sale,  the 
decree  and  antecedent  proceedings  should  be  set  out  very 
fully. 

§  517.  Dower.  The  interest  which  a  widow  possesses  in 
the  lands  of  her  deceased  husband  in  right  of  dower  may,  at 
common  law,  be  assigned  to  her  in  severalty  by  the  heir,  without 
the  order  of  a  court  and  without  a  deed,  for  the  assignment  in 
such  case  is  not  regarded  as  a  conveyance  of  title,  but  only  the 
ascertainment  of  an  interest  which  is  a  continuation  of  the 
estate  of  the  husband,  and  which  is  held  of  him  by  appointment 
of  law ;  44  the  only  effect  of  the  assignment  being  to  distinguish 
the  land  to  which  it  attaches  from  the  rest  of  the  husband's 
estate.  But  should  the  heir  neglect  or  refuse,  within  a  reason- 
able time  after  the  death  of  a  husband,  to  lay  off  and  assign  to 
the  widow  such  portion  of  the  land  as  she  may  be  entitled  to 
use  and  occupy,  or  when  the  particular  part  can  not  be  agreed 
upon,  or  when  the  right  is  disputed,  recourse  may  be  had  to 
equity  to  determine  the  rights  and  apportion  the  interests  of 
the  parties.  In  some  States  an  ejectment  suit  at  law  may  be 
resorted  to  by  the  widow. 

Where  the  right  is  undisputed,  dower  may  be  assigned  by 
the  probate  court,  as  an  incident  to  the  settlement  of  the  hus- 
band's estate,  and  the  award  in  such  case  should  substantially 
appear  in  the  synopsis  of  probate  proceedings,  or  as  an  inde- 
pendent exhibit. 

Where  the  right  is  disputed  the  probate  court,  as  a  rule,  has 

43  Hinson  v.  Adrian,  86  N.  C.  61 ;  44  Farnsworth    V.    Cole,    42    Wis. 

Mabury  v.  Ruiz,  58  Cal.  11.  .      405;  4  Kent.  Com.  62. 


618  ABSTRACTS    OF    TITLE. 

no  jurisdiction,  while  in  many  States  if  the  heir  or  other  person 
shall  not,  within  some  specified  period  after  the  death  of  the 
husband,45  satisfactorily  set  over  and  assign  to  the  surviving 
wife  dower  in  and  to  all  lands  whereof  by  law  she  is  or  may  he 
dowable,  such  surviving  wife  may,  in  the  first  instance,  sue  for 
and  recover  the  same  by  petition  in  equity,  against  the  heir  or 
any  other  person  claiming  right  or  possession  of  said  estate. 
In  either  case  the  interposition  of  commissioners  is  contem- 
plated, and  the  report  of  the  commissioners,  together  with  the 
approval  of  the  court,  are  necessary  parts  of  the  abstract  of  the 
proceedings.  Where  an  allowance  is  made  in  lieu  of  dower 
a  statement  must  be  made  of  that  fact,  particularly  when  by 
decree  the  assessment  of  such  allowance  is  made  a  lien  upon  the 
heir's  land. 

§  518.  Divorce.  The  dissolution  of  the  marriage  contract, 
though  formerly  a  power  exercised  by  the  legislature,  is  now 
very  generally  relegated  to  courts  of  equity,  and  as  a  rule,  such 
courts  have  exclusive  original  jurisdiction.  Until  decree  has 
actually  been  entered,  the  legal  relations  of  the  parties  continue 
to  subsist,  even  where  the  marriage  is  utterly  void  for  pre- 
existent  causes,  and  such  decree,  to  be  effective,  must  further 
be  made  during  the  lifetime  of  both  parties.46 

At  common  law,  a  divorce  was  only  granted  for  pre-existent 
cause,  and  had  the  effect  of  bastardizing  the  issue.  Under  the 
statute  divorces  are  granted  for  causes  arising  subsequent,  as 
well  as  prior,  to  the  marriage,  and  do  not  affect  the  legitimacy 
of  the  children  of  the  marriage,  except,  perhaps,  when  the 
divorce  is  granted  on  the  grounds  of  a  prior  marriage.47 

Pending  the  determination  of  the  cause  the  husband  may  be 
enjoined  from  disposing  of  his  property  in  order  to  defeat  any 
allowance  of  alimony,48  but  such  injunction  is  never  made  per- 

45  Where  husband  and  wife  are  4  7  Consult  local  statutes  for  the 
equally  dowable  in  the  lands  of  the       effect  of  divorce. 

other,  these  remarks  will  apply  to  48  Vanzant    v.    Vanzant,    23    III. 

both  sexes.  536;  Gray  v.  Gray,  65  Ga.  193. 

46  Reeves'     Dom.      Rel.      204 ;      1 
Black.  Corn.  440. 


ACTIONS    AND    PROCEEDINGS.  619 

petual  on  granting  the  decree.49  The  allowance  of  alimony 
may,  however,  be  enforced  by  a  sale  of  the  husband's  real  estate, 
and  by  the  decree  the  payment  of  same  is  frequently  made  a 
specific  lien  upon  his  property.  When  alimony  or  maintenance 
is  made  to  become  due  by  installments,  and  a  sale  is  made  to 
meet  such  installments,  the  title  will  pass  subject  to  the  lien 
of  installments  not  then  due  unless  the  court  shall,  at  the  time, 
direct  otherwise.50  When  property  is  held  by  one  party 
which  equitably  belongs  to  the  other,  the  court  may  compel  con- 
veyance thereof  to  be  made,  and  sometimes,  in  case  of  a  com- 
munity of  interest,  a  partition  is  necessary.51  Lands  in  fee 
may  be  decreed  in  satisfaction  of  alimony,52  or  the  court  may 
assign  as  such  the  use  for  life  of  part  of  the  husband's  estate.53 
It  is  not  customary,  however,  to  disturb  the  husband's  real 
estate,  but  a  definite  money  allowance  is  made  instead ;  "  in- 
deed," says  Dickey,  J.,  "  the  cases  are  very  rare  where  the  fee 
in  lands  held  by  the  husband  should  ever  be  required  to  be 
transferred  to  the  wife,  unless  she  has  some  special  equity  in 
that  particular  land,  arising  from  the  purchase  having  been 
made  with  her  money,  or  from  some  other  cause  substantially 
placing  the  husband  in  the  position  as  to  that  property  equiva- 
lent to  that  of  a  trustee  holding  in  his  name  for  the  wife,  or  in  a 
position  in  its  nature  equitably  equivalent  thereto.  In  such 
cases,  though  the  form  of  the  decree  may  be  that  of  adjusting 
the  question  of  alimony,  the  substance  is  more  in  the  nature  of 
the  enforcement  of  a  trust."  54 

With  respect  to  the  effect  upon  lands  of  a  decree  for  alimony 
payable  in  gross,  the  rule  does  not  seem  to  be  well 'settled.     The 

49  Errissmann   r.   Errissmann,   25  51  Stewartson    V.    Stewartson,    15 
111.  136;  Keating  r.  Keating,  48  111.       111.    145. 

242.     Instead  pf  the  injunction,  the  52  Wheeler    v.    Wheeler,     18    111. 

decree    makes    the    alimony    a    lien  39. 

upon  his  land,  and  he  may  be  com-  53  Keating    V.     Keating,     48     111. 

polled  to  secure  the  lien  further  by  241;  Jolliff  V.  Jolliff,  32  111.  527. 

mortgage.  54  Wilson     v.     Wilson,     102     111. 

50  All  these  matters  are  the  sub-  297. 
ject  of  express  statutory  regulation. 
Consult  local  statutes. 


620 


ABSTRACTS    OF    TITLE. 


volume  of  authority,  however,  holds  that  such  a  decree  will 
operate  as  a  lien  upon  the  lands  of  the  husband  located  in  the 
county  where  the  decree  is  rendered  or  docketed,  and  may  he 
enforced  by  execution  levied  upon  such  lands  either  in  the  hands 
of  the  divorced  husband  or  his  grantee,  where  they  have  been 
conveved  after  the  rendition  of  the  decree.55 


55  In  Chase  V.  Chase,  105  Mass. 
385,  it  was  held  that  a  judgment 
for  alimony  in  the  ease  of  a  divorce 
a  vinculo,  or  from  bed  and  board, 
creates  a  debt  of  record  in  favor 
of  the  wife,  and  that  she  is  entitled, 
as  a  creditor,  to  impeach  a  con- 
veyance made  by  him  with  intent 
to  defraud  her.  It  is  said  by  the 
Supreme  Court  of  the  United  States 
in  Barber  v.  Barber,  21  How.  582, 
that  when  the  court,  having  juris- 
diction of  her  suit,  allows  the  wife, 
from  her  husband's  means,  by  way 
of  alimony,  a  suitable  maintenance 
and  support,  "  it  becomes  a  judicial 
debt  of  record  against  the  husband, 
and  is  as  much  a  debt  of  record, 
until  the  decree  has  been  recalled, 
as  any  other  judgment  for  money 
is."  And  see,  to  the  same  effect, 
Wetmore  V.  Wetmore,  149  N.  Y. 
520.  In  Frakes  V.  Brown,  2 
Blackf.  (Ind.)  295,  the  wife  ob- 
tained a  divorce,  and  a  judgment 
for  the  sum  of  $550  as  alimony. 
By  virtue  of  a  fieri  facias  issued 
upon  this  judgment,  the  land  in 
question  was  sold,  and  the  com- 
plainant was  the  purchaser.  In  a 
bill  in  chancery  the  complainant 
prayed  that  a  conveyance  of  the 
land  made  by  the  husband  to  the 
defendant  might  be  set  aside  as 
fraudulent  and  void.  In  the  opin- 
ion, Blackford,  J.,  says :  "  It  is 
said  that  real  estate  is  not  liable 
on  a  decree  for  a  divorce  and  ali- 
mony.    The  answer  to  this  is  that 


here  is  a  judgment  against  the  hus- 
band for  a  certain  sum  of  money, 
rendered  by  a  court  having  juris- 
diction of  the  cause,  and  that  every 
judgment  of  this  kind,  is  by  statute, 
a  lien  on  real  estate.  It  is  not  for 
this  court  to  look  beyond  the'  judg- 
ment in  the  case  before  us.  It 
must  be  considered  as  having  the 
same  effect  as  all  other  judgments 
for  the  payment  of  money,  whilst 
it  stands  unreversed  and  remains 
unsatisfied."  The  statute  by  which 
judgments  became  liens  on  real  es- 
tate was  the  general  enactment: 
"  Judgments  in  the  Circuit  Courts 
are  hereby  made  liens  on  the  real 
estate  of  the  defendant  or  defend- 
ants, from  the  day  of  the  rendition 
thereof,  in  the  county  where  such 
judgment  may  be  rendered."  Rev. 
Laws  Ind.  1S24,  192.  In  Keyes  v. 
Scanlan,  63  Wis.  345,  the  complaint 
set  out  that  the  plaintiff  recovered 
a  judgment  for  divorce  against  her 
husband,  and  that  the  sum  of  $300 
alimony,  and  cost  of  suit,  were  ad- 
judged in  her  favor.  Section  2367 
of  the  Annotated  Statutes  of  Wis- 
consin provides  that,  upon  the  fail- 
ure to  pay  the  alimony  adjudged 
to  the  wife,  "  the  court  may  enforce 
the  payment  thereof  by  execution 
or  otherwise,  as  in  other  cases." 
In  construing  this  language,  the 
court  say :  "  There  are  very  satis- 
factory reasons  for  saying  that  the 
divorce  judgment  stood  upon  the 
same    footing    as    ordinary    money 


ACTIONS    AND    PROCEEDINGS.  621 

With  the  exceptions  hereafter  noted,  divorce  proceedings  are 
seldom  shown  in  abstracts  of  title,  save  as  they  may  incumber 
land  by  the  lien  for  alimony,  and  then  only  in  brief  and  gen- 
eral terms.  A  divorce  has  another  important  effect  on  titles, 
however,  considered  in  respect  to  dower.  It  is  a  doctrine,  both 
of  the  common  law  and  of  the  statute,  that  the  dissolution  of 
the  marriage  relation,  ipso  facto  restores  the  parties,  legally  as 
well  as  socially,  to  the  same  relative  position  they  occupied 
prior  to  entering  into  same.  One  of  the  incidents,  therefore,  is 
loss  of  the  dower  right  of  the  wife,57  and  to  show  a  full  and 
complete  exposition  of  title  an  appropriate  mention  of  a  divorce 
seems  necessary  in  all  cases  where  the  question  of  dower  would 
properly  arise.  This  may  be  accomplished  by  a  brief  reference 
to  the  case  as  follows  : 


Albert    Gallaway, 


vs. 


Mary  A.  Gallaway. 


Circuit  Court,  Cook  County. 
Case  No.   10,057. 
Bill  for  divorce. 

January    20,     1SS1.      Decree    of 

divorce  rendered,  which  orders,  inter 

alia,  that  defendant  be,  and  she  is,  forever  barred  of  and  from 

all  right  and  claim  of  dower  in  and  to  the  lands  and  tenements 

of  said  complainant. 

Costs  paid. 

A  decree  of  divorce,  however,  has  no  retroactive  effect  except 
as  specially  provided  for  by  statute,  and  therefore  a  wife's  right 
of  dower  which  had  vested  prior  to  a  decree  is  not  thereby 
divested  unless  the  statute  so  specifically  declares.58 

There  is  another  effect  produced  by  divorce  which  properly 

judgments,  and  became  a  lien  upon  served  where  the  decree  is  rendered 

the  real  estate  of  the  debtor,  liable  in   favor   of   the   wife   for   the   mis- 

to  execution,  as  soon  as  docketed."  conduct    of    the    husband.      Consult 

57  Eurdick    r.     Briggs,     11     Wis.  local   statutes. 
126;    Rice   v.    Lumley,    10   Ohio   St.  58  Van  Cleaf  v.  Burns.  118  N.  Y. 

•"'.)<;:    Given    v.    Marr,   27    Me.    212;  549;   and   sec,   Alt   v.  Banholzer,   39 

Miltmore    v.    Miltmore,    40    Pa.    St.  Minn.   511. 
L51.     In   some   States  dower  is  pre- 


C22  ABSTRACTS    OF    TITLE. 

finds  mention  in  a  work  of  this  character.  As  has  been  shown 
a  conveyance  to  husband  and  wife,  in  most  of  the  States,  pro- 
duces what  is  known  as  an  estate  by  entirety,  that  is,  an 
estate  similar  to  a  joint  tenancy.59  It  is  held  that  this 
estate  is  destroyed  by  divorce,  the  legal  unity  of  the  parties 
being  broken,  and  that  the  former  spouses  become  tenants  in 
common.60 

In  many  cases  where  a  divorce  is  pending,  prudence  would 
suggest  that  a  brief  allusion  be  made  to  it,  yet  the  commence- 
ment and  pendency  of  such  action,  where  the  bill  merely  sets 
forth  the  defendant's  lands  as  affecting  the  amount  of  alimony 
to  be  allowed,  and  neither  asserts  nor  seeks  any  right  in  respect 
to  them,  affords  no  notice  lis  pendens  sufficient  to  affect  the 
rights  of  purchasers  from  such  defendant.  Where,  however, 
the  bill  sets  up  some  specific  claim  of  right  in  the  lands,  or 
where  any  part  of  them  are  asked  to  be  assigned  for  alimony, 
or  any  other  right  is  asserted  in  respect  to  them  or  any  other 
relief  asked  in  regard  to  them,  it  would  seem  that  the  doctrine 
of  Us  pendens  will  apply ;  and  any  one  who  purchases  such  prop- 
erty during  the  pendency  of  the  action  will  be  bound  by  the 
judgment  subsequently  rendered  therein.61 

§  519.  The  Right  of  Eminent  Domain.  The  general 
subject  of  eminent  domain  has  been  alluded  to  in  a  former  part 
of  this  book,  but  may  be  advantageously  referred  to  at  this 
place  in  connection  with  its  practical  application  to  the  aliena- 
tion of  land.  The  right  of  eminent  domain  is  defined  to  be  the 
ultimate  right  of  the  sovereign  power  to  appropriate  not  only 
the  public  property,  but  the  private  property  of  all  persons 
within  the  territorial  sovereignty,  to  public  purposes,62  and 
though  the  exercise  of  the  right  usually  affects  only  the  use  and 
enjoyment  of  the  land  and  not  the  fee,63  it  is,  in  effect,  a  per- 

59  Consult,   §  241   supra.  150;   Wilkinson  V.  Elliott,  43  Kan. 

60  Steltz    v.    Shreck,    128    N.    Y.       590. 

263;    and    see,    Harrer    v.    Wallner  62  Vattel's  Law  of  Nations,  b.  1, 

80  111.   197;   Lash  v.  Lash,  58  Ind.  .    ch.    20;     Charles    River    Bridge    V. 

526.  Warren  Bridge,  11  Pet.  641. 

61  Sapp    r.    Wightman,    103    111.  63  R.  R.  v.  Burkett,  42  Ala.  83; 


ACTIONS    AND    PEOCEEDINGS.  623 

petual  right  of  user  almost  equal  in  dignity  to  the  foe,  and  in 
Borne  Si  ales  it  contemplates  a  transfer  of  the  fee  itself.64  This 
righl  is  variously  exercised  by  the  State,  both  in  its  own  behalf, 
as  for  the  acquisition  of  land  for  State  institutions  or  improve- 
ments, roads,  canals  and  other  works  of  a  strictly  public  char- 
acter, and  in  behalf  of  corporations  for  works  and  improve- 
ments of  a  quasi  public  character,  but  it  is  a  fundamental  prin- 
ciple that  any  lands  of  the  subject,  for  whatever  purpose  re- 
quired, shall  not  be  taken  or  damaged  for  public  use,  without 
just  compensation.  When  land  is  taken  under  this  right  and 
in  fee,  it  is  freed  from  all  contingent  interests,  liens  and  equities, 
including  inchoate  rights  of  dower,  judgment  liens,  etc.05 

In  the  examination  of  titles  questions  growing  out  of  the 
exercise  of  this  right  are  often  presented  where  there  has  been 
an  abandonment  of  the  lands  appropriated,  or  a  diversion  from 
the  original  purpose.  Condemnations  are  also  shown  inciden- 
tally, as  where  rights  of  way  are  acquired  over  tracts  which 
form  the  subject  of  an  examination. 

§  520.  Proceedings  for  Condemnation.  Provision  is 
made  in  every  State  for  the  condemnation  of  land,  and  the  com- 
pensation to  be  paid  for  or  in  respect  of  the  property  sought 
to  be  appropriated  or  damaged,  when  no  agreement  can  be  ef- 
fected by  the  parties  interested ;  or  in  case  the  owner  of  the 
property  is  incapable  of  consenting;  or  his  name  or  residence  is 
unknown ;  or  he  is  a  non-resident  of  the  State. 

The  general  procedure  is  very  uniform,  though  the  instru* 
mentalities  used  are  not  alike  in  all  the  States.  The  proceed- 
ings generally  contemplate  an  investigation  by  a  jury,  and  an 
assessment  and  award,  which,  when  regularly  accomplished  and 
confirmed,  has  the  effect  of  divesting  the  title  of  the  former 
owner  and  clothing  the  corporation  with  such  title  as  the  law 

Hatch  v.   R.  R.,   18  Ohio,  92;   Mor-  Seld.    214;    Troy   v.    R.    R.   Co.,   42 

cis    v.    Sehallsville,   C   Bush    (Ky.),  Vt.   265;    Challis  v.   R.    R.   Co.,    16 

671.  Kan.  117. 

64Nicoll    v.   R.    R.    Co.,   2   Kern.  65  Moore     r.     Aldermen,     etc.,     4 

121;  People  V.  Mauran,  5  Den.  389;  Sand.    456;    affirmed,    4    Sel.    110; 

Heyward    v.    Mayor    of    N.    Y.,    3  Watson    v.    R.    R.,    47    N.    Y.    157. 


624  ABSTRACTS    OF    TITLE. 

imports.  This  is  effected  by  a  petition  addressed  to  a  court  of 
competent  jurisdiction,  or  to  a  judge  thereof,  either  in  term 
time  or  vacation,  setting  forth,  by  reference,  the  authority  in 
the  premises  of  the  party  seeking  to  take  or  damage  the  prop- 
erty so  required;  the  purpose  for  which  said  property  is 
sought  to  be  taken  or  damaged ;  a  description  of  the  prop- 
erty; the  names  of  all  persons  interested  therein  as  appearing 
of  record,  if  known,  or  if  not  known  stating  the  fact,  and  if  the 
proceedings  seek  to  affect  the  property  of  persons  under  guard- 
ianship the  guardians,  or  conservators  of  persons  having 
conservators,  must  also  be  made  parties  defendant,  and  if  mar- 
ried women  their  husbands  must  be  made  parties.  Persons 
interested  whose  names  are  unknown  may  be  made  parties  by 
the  description  of  the  unknown  owners;  the  latter  fact  being 
presented  by  affidavit.  Notice  is  given  to  the  parties  interested 
by  personal  or  substituted  service,  and  a  hearing  is  had  either 
before  the  judge  to  whom  the  petition  was  addressed,  or  com- 
missioners appointed  by  him,  and  when  heard  by  the  judge  a 
jury  may  be  impaneled  to  ascertain  the  damages.  The  record 
in  the  matter  should  substantially  appear  in  the  abstract,  and 
must  be  sufficiently  full  to  disclose  all  jurisdictional  facts  and 
that  the  power  has  been  exercised  according  to  the  direction  of 
law.  When  the  proceedings  are  conducted  by  commissioners  a 
report  is  made  to  the  court  granting  the  authority,  and  this 
report  substantially  embodies  all  that  is  necessary  to  show  com- 
plete divesture,  while  the  court  roll,  when  such  proceedings  are 
conducted  primarily  before  a  court,  or  on  appeal,  will  also  serve 
the  same  end. 

If  the  proceedings  are  regular  in  form  the  synopsis  may  be 
considerably  condensed,  and  when  such  proceedings  are  dis- 
played only  incidentally,  for  the  purpose  of  explaining  the  situ- 
ation of  the  land  and  not  to  show  the  title  of  the  condemned 
tracts,  this  course  is  recommended.  In  such  case  brief  refer- 
ences to  the  petition,  the  appearance  of  parties,  the  verdict  and 
the  judgment  of  the  court,  are  all  that  will  be  necessary. 
Thus : 


ACTIONS    AND    PROCEEDINGS.  625 


In  the  County  Court  of  Cook  County. 


Central  Railway   Com-^ 
pany 
vs. 
James  Thompson. 


Case,  1,509. 

Petition,  filed  July  1, 1903,  for  the 
'condemnation  of  the  South  100  feet 
of  the  North  West  quarter  of  Section 
10,  Town  89  North,  Range  13  East  of  the  3d  Principal  Me- 
ridian, for  the  purposes  of  a  railroad. 

Appearance  of  defendant  entered  Aug.  k,  1903. 
Case  heard  Oct.  15,  1903  {Law  Pec.  12,  pg.  25).  Verdict 
rendered  wherein  the  jury  finds  that  the  petitioner  do  take  from 
the  owner  the  following  property,  to-ivit :  a  strip  of  land  100  feet 
in  width  over  and  across  the  South  side,  etc.  [set  out  the  find- 
ing]. 

Ordered,  by  the  court,  that  petitioner  have  judgment  of  con- 
demnation herein,  and  that  upon  the  payment  by  it  to  the 
County  Treasurer  of  said  county,  of  the  sum  aforesaid,  that 
said  Central  Railway  Company  do  enter  into  possession  of  the 
said  land  and  hold  the  same  for  the  purposes  provided  by 
law. 

It  will  frequently  be  advisable  to  show  condemnation  proceed- 
ings where  land  is  taken  for  the  opening  or  widening  of  streets, 
and  the  result  is  a  change  in  the  shape  or  dimensions  of  platted 
lands.  Where  provision  is  also  made  for  an  assessment  of 
benefits  as  well  as  compensation  for  damage,  it  will  become 
necessary  to  show  the  essential  features  of  the  proceeding  and 
the  extent  of  the  lien  thereby  occasioned.  Brief  general  re- 
citals will,  however,  be  sufficient.     As  per  example : 


In  Superior  Court  of  Cook  Co. 
Case,  No.  79,050. 
Petition  filed  June  2,  1906,  rep- 
'resents  that  on  March  28.  1906, 
the  City  Council  of  said  City  passed 
an  ordinance  providing  that  Fair  mount  Avenue  be  opened  and 
widened  from  West  28th  Street  to   Wilson  Avenue,  by  con- 

40 


City  of  Chicago 

vs. 
Unknown   Owners. 


626  ABSTRACTS    OF    TITLE. 

detuning  therefor  the  East  lG1/^  feet  of  Lots  10,  11,  12  and 
13,  in  Block  4-  of  White  &  Black's  subdivision  of  the  W.  ^2  of 
N.  E.  14  of  Sec.  16,  T.  21f,  N.  R.  12,  and  other  property. 

Attached  to  petition  is  a  copy  of  said  ordinance,  duly  verified, 
wherein  it  is  provided  that  said  improvement  be  made  by 
special  assessment  to  be  levied  upon  the  property  benefited. 

Prays  that  the  just  compensation  to  be  made  for  property 
taken  or  damaged  be  ascertained  by  a  jury. 

Feb.  llf,  1907,  (Law  Bee.  1+5,  pg.  276)  Verdict,  wherein  the 
jury  find  the  just  compensation  to  be  paid  to  the  owners  of  the 
East  16Y2  feet  of  said  Lots  to  be  $75.00  for  each  lot. 

Judgment  on  the  verdict  for  said  respective  sums. 

Assessment  roll  filed  June  10,  1907,  wherein  Lots  10,  11, 
12  and  13  are  each  assessed  the  sum  of  $125.00. 

July  1,  1907,  (Law  Bee.  1±5,  pg.  1/.8S)  Assessment  confirmed. 

§  521.  Construction  of  Wills.  The  validity  of  a  will 
may  be  contested  in  equity  as  well  as  before  the  probate  court,66 
yet  this  is  seldom  done,  except  on  appeal,  and  the  aid  of  a  court 
of  equity  is  usually  invoked  only  to  pass  upon  and  construe 
indefinite  and  uncertain  passages,  or  to  direct  the  executor  in 
the  execution  of  indeterminate  or  insufficiently  expressed 
trusts.  Where  any  doubt  arises  as  to  the  proper  construction 
of  a  will,  or  as  to  the  rights  of  parties  thereunder,  resort  is 
usually  had  to  a  court  of  equity  for  a  construction  and  decree 
for  distribution,  and  the  decree  so  made,  so  far  as  it  relates  to 
land,  either  directly  or  by  just  implication,  becomes  an  essential 
muniment  of  title,  equal  in  importance  to  the  will  itself,  and  of 
which,  as  an  expression  of  the  testator's  intention,  it  forms  an 
integral  part. 

66  Duncan  V.  Duncan,  23  111.  264;    Flinn  v.  Owen,  08  111.  111. 


CHAPTER  XXIX. 

TAXES   AND   TAX   TITLES. 

§  522.  Definition  —  Nature  of  tax-  §  531.  Tax    sales  —  Tax    payer    as 
ing  power.                                                      purchaser. 

523.  Subjects  of  taxation.  532.  Rights  of  purchasers. 

524.  Lien  of  taxes.  533.  Redemption. 

525.  Tax  titles.  534.  Certificate  of  sale. 

526.  Nature  of  tax  titles.  535.  Tax  deeds. 

527.  Proceedings  incident  to  tax-  -536.  Continued. 

ation.  537.     Formal  parts. 

528.  Description    of    land  —  As-  538.     Effect  of  deed  as  evidence. 

sessor's  plats.  539.     Tax    deed  —  Possession  — 

529.  Sale  of  non-payment.  Limitation. 

530.  Forfeitures.  540.     Tax    abstracts. 

541.     Special  Assessments. 

§  522.     Definition- — Nature  and  Scope  of  the  Taxing 

Power.  By  the  concurrent  opinion  of  lawyers,  judges,  lexi- 
cographers, and  political  economists,  as  well  as  by  the  general 
and  popular  understanding,  taxes  are  burdens  or  charges  im- 
posed by  the  legislative  power,  upon  persons  or  property,  to 
raise  money  for  public  purposes  or  to  accomplish  some  govern- 
mental end.1  This  power  is  vested  wholly  in  the  legislature, 
though  municipalities  may  exercise  it  by  a  special  delegation 
of  authority,  and  is  unrestricted  except  when  it  is  opposed  to 
some  provision  of  the  Federal  or  State  constitution.2  It  ex- 
tends to  every  trade  or  occupation,  to  every  object  of  industry, 
use,  or  enjoyment,  and  to  every  species  of  possession.3  The 
right  of  taxation  has  for  its  foundation  the  principle  that  the 

1  Hanson  v.  Vernon,  27  Iowa,  28;  3  Curry  r.  Spencer,  14  Reporter, 
Mitchell  v.  Williams,  27  Ind.  62;  527;  DePauw  v.  New  Albany,  22 
Blackw.  Tax  Tit.  1.  Ind.  204;  Anderson  v.  Kerns  Drain- 

2  People     v.    Marshall,     1     Gilm.  ing  Co.,   14  Ind.  199. 
(111.)    072;    Wider  r.   East  St.  Louis, 

55    111.   133. 

627 


628  ABSTRACTS    OF    TITLE. 

citizen  shall  contribute  to  the  support  of  the  government  which 
protects  his  person  and  property,  in  just  proportion  to  the  value 
of  the  property  protected ;  4  and  equality,  so  far  as  is  prac- 
ticable, is  its  distinguishing  characteristic.5  While  it  is 
scarcely  jDOSsible  to  attain  absolute  equality  in  all  cases,  or 
benefits  commensurate  with  the  burden  of  taxes  imposed,  yet 
the  principle  upon  which  the  approximation  to  equality  is  to  be 
maintained  must  be  preserved  inviolate  in  this,  that  all  prop- 
erty subject  to  taxation  shall  be  uniformly  assessed,  according 
to  value ;  a  rule  applicable  to  all  taxation,  whether  for  general, 
local  or  special  purposes.6 

The  legislature,  as  we  have  seen,  is  the  sole  source  and  re- 
pository of  the  taxing  power ;  on  the  other  hand,  the  counties 
and  other  municipal  divisions  are  mere  auxiliaries  of  the  gov- 
ernment, established  simply  for  the  more  effective  administra- 
tion of  justice,  and  the  power  of  taxation,  as  confided  to  them, 
is  a  delegated  trust,  and  is  to  be  strictly  construed.  They  act, 
not  by  virtue  of  inherent  power,  but  as  mere  agencies  of  the 
State,7  the  whole  theory  of  our  system  of  taxation  being  based 
upon  the  idea  that  it  is  prepared  by  the  representatives  of  the 
people,  upon  due  deliberation  and  reflection,  and  when  thus 
prepared  for  State  purposes,  it  may  be  safely  applied  by  the 
counties  and  other  local  agencies  of  the  commonwealth. 

§  523.  Subjects  of  Taxation.  Primarily  all  property  is 
subject  to  a  just  proportion  of  the  burdens  of  taxation  in  return 
for  the  protection  which  the  State  affords,  but  the  legislature 
may  grant  an  exemption  to  certain  classes,  and  such  grant  may 

4Dunleith    v.    Reynolds,    53    111.  McCormack  v.  Patchin,  53  Mo.  33; 

45;   In  re  Van  Antwerp,  56  N.   Y.  Weeks  v.  Milwaukee,   10  Wis.  242; 

265.  People  V.  Bradley,  39  111.   130;   Ot- 

5  Sherlock    v.    Village    of    Win-  tawa   v.    Spencer,   40    111.    211;    At- 

netka,     60    111.     530;     Holbrook    v.  torney-General     v.     Plankroad     Co., 

Dickinson,    46    111.    285;    Weeks    v.  11  Wis.  35;  Soens  v.  Racine,  10  Wis. 

Milwaukee,   10  Wis.  242;  Attorney-  271. 

General   v.   Plankroad   Co.,   11   Wis.  7  R.      R.      Co.      v.      Washington 

35.  County.  30  Gratt.   (Va.)   471;  U.  S. 

o  Peay    v.    Little    Rock.    32    Ark.  v.  New  Orleans,  98  U.  S.    (8  Otto) 

31;  Chicago  v.  Larned,  34  111.  253;  381. 


TAXES    AND    TAX    TITLES.  629 

be  in  the  nature  of  a  contract  and  therefore  inviolable.  But 
such  grant  must  be  expressed  in  clear  and  unmistakable  lan- 
guage, and  can  not  be  aided  by  presumption  or  inference,8 
while  all  language  creating  an  exemption  is  to  be  strictly  con- 
strued.9 

§  524.  Lien  of  Taxes.  The  lien  for  taxes  attaches  to  all 
land  subject  to  taxation,  annually,  upon  some  day  stated,  the 
time  being  different  in  nearly  every  State,  and  continues  until 
the  tax  is  paid.10  Where,  for  instance,  the  lien  attaches  on  the 
first  day  of  May,  and  the  property  is  conveyed  subsequent  to 
that  date,  it  is  incumbered  by  the  lien,  and  unless  a  special 
exception  is  made  in  the  deed  the  vendor  is  liable  upon  his 
covenants  for  the  payment  of  the  tax.  It  is  also  a  statutory 
provision  in  many  States,  that  taxes  assessed  on  personal  prop- 
erty of  the  same  owner  become  a  lien  on  his  real  estate.11 

Many  examiners  make  no  search  for  information  concerning 
current  taxes,  yet  this  is  one  of  the  things  of  which  intending 
purchasers  should  be  apprised.  Taxes  are  due  and  payable  at 
a  stated  time  each  year  and  when  the  date  of  the  search  is 
after  this  time,  and  before  that  fixed  for  the  sale  of  lands 
for  taxes,  an  examination  should  be  made  to  ascertain  the  fact 
of  payment  or  non-payment.  The  result  may  be  embodied  in 
a  brief  note  among  the  appendices,  as  follows : 

Note. —  It  does  not  appear  from  the  collector  s  warrant  that 
the  taxes  for  the  year  1903,  levied  on  the  property  de- 
scribed in  the  caption  [or  whatever  piece  may  be  delin- 
quent] have  been  paid. 

A  general  statement  that  the  examiner  finds  no  unpaid  taxes 
may  be  embodied  in  the  final  certificate  but,  if  desired,  the  fact 

8Minot    v.    R.    R.    Co.,    18    Wall.  Saginaw,    19   Mich.   259;   Methodist 

200;    Butler's    Appeal,    73    Pa.    St.  Church  v.  Chicago,  26  111.  482. 

448;   R.  R.  Co.  v.  Maguire,  49  Mo.  io  Binkert  v.  Wabash  Ry.  Co.,  98 

490.  111.  205. 

o  Commissioners    r    Brackenridge,  11  Union  Trust  Co.,  V.  Weber,  96 

12    Kan.    114;    Manf.    Co.    v.    East  111.  346. 


G30  ABSTRACTS    OF    TITLE. 

of  payment  may  be  shown  affirmatively  by  a  note  similar  to  the 
foregoing,  and  whenever  the  title  is  complicated  by  adverse 
claims  or  interests  it  is  always  well  to  show  who  paid  the  tax. 
Thus: 

Note. —  On  the  collector's  books  for  the  year  1903  the  general 
taxes  levied  on  I Jw  hind  described  in  the  caption  hereto, 
are  marked  as  having  been  paid  May  1J/.,  190 1+,  by 
Thomas  Br  own. 

§  525.  Tax  Titles.  A  tax  title  is  a  purely  technical,  as 
contradistinguished  from  a  meritorious  title,  and  depends  for 
its  validity  upon  a  strict  compliance  with  all  the  requirements 
of  law.12  No  presumption  can  be  raised  to  cure  radical  defects 
in  the  proceedings,-  and  the  proof  of  regularity  devolves  on  the 
person  asserting  the  title.13  If  the  land  claimed  under  such  a 
title  was  subject  to  taxation,  and  the  proceedings  under  the  law 
have  been  regular,  and  the  owner  has  failed  to  redeem  within 
the  time  limited  by  law,  then  the  whole  legal  and  equitable 
estate  is  vested  in  the  purchaser,  and  a  new  and  perfect  title  is 
established.14  This  results  from  the  paramount  authority  of 
the  State  to  levy  the  tax  and  coerce  its  payment  by  subjecting 
the  property  to  sale,  yet  owing  to  the  complexity  of  the  pro- 

i2Altes  v.  Hinckler,  36  111.  265;  prescribes     the     form,     time,     and 

Whitmore   V.    Lamed,   70  Me.   276;  manner    of    doing    anything,    such 

Charles     v.     Waugh,    35    111.    315;  thing    must    be    done,    and    in    the 

Hewes  V.  Reis,  40  Cal.  225;  Rivers  form,  time   and  manner  prescribed, 

V.  Thompson,  43  Ala.  633.  or  the  title  is  invalid;   and  in  this 

13  Oliver  v.  Robinson,  5S  Ala.  46.  respect  the  statute  must  be  strictly, 

14  Atkins  V.  Hinman,  2  Gilm.  if  not  literally,  complied  with;  (2) 
(111.)  437;  Smith  r.  Messer,  17  N.  but  in  determining  what  is  required 
H.  420;  Dunlap  r.  Gallatin  Co.,  15  to  be  clone,  the  statute  must  receive 
111.  7;  Jarvis  V.  Peck,  19  Wis.  74;  a  reasonable  construction;  and 
Cram  v.  Cotting,  22  Iowa,  411.  where  no  particular  form  or  manner 
The  following  principles,  or  rules,  of  doing  a  thing  is  pointed  out, 
for  testing  the  validity  of  tax  titles,  any  mode  which  effects  the  object 
appear  to  be  fairly  deducible  from  with  reasonable  certainty  is  suffi- 
the  reported  cases:  (1)  Where  the  cient :  Hall,  J.,  in  Chandler  V. 
statute    under    which    the    sale    is  Spear.  22  Vt.   388. 

made  directs  a  thins  to  be  done,  or 


TAXES    AND    TAX    TITLES.  COi 

eedure  employed,  and  the  careless,  bungling  or  ignorant  manner 
in  which  it  is  often  used,  as  well  as  the  many  grave  questions 
which  may  arise  even  on  perfect  service,  a  tax  title  is  regarded 
as  among  the  poorest  evidences  of  the  ownership  of  land,  and 
is  always  taken  with  suspicion  and  viewed  with  jealousy. 

Though  the  end  to  be  attained  by  the  sale  of  the  land,  to  wit, 
the  satisfaction  of  the  levy,  is  the  same  in  every  State,  yet  no 
two  States  seem  to  pursue  exactly  the  same  methods  in  arriving 
at  this  end,  but  whatever  be  the  methods  employed,  there  must  at 
least  be  a  valid  judgment  or  corresponding  feature;  a  valid 
precept  authorizing  the  sheriff,  auditor,  or  other  officer  to  make 
the  sale ;  1 5  and  a  proper  conveyance  of  the  land  from  such, 
officer  or  other  authorized  person.  These  are  essential  to  the 
prima  facie  validity  of  the  title,  and  none  of  them  can  be  dis- 
pensed with.16  The  basis  of  the  title  is,  of  course,  a  legal  tax, 
and  no  title  passes  by  a  deed  when  the  whole  or  any  part  of 
the  tax  on  which  it  is  founded  was  illegal.17  A  sale  of  land 
for  taxes  frees  it  in  the  hands  of  the  purchaser  from  all  liens 
or  liabilities  for  taxes  of  previous  years ;  1S  divests  all  prior  liens 
and  incumbrances ; J  9  bars  the  inchoate  right  of  dower ;  20  and 
vests  in  such  purchaser  a  new,  original,  and  unimpeachable  title 
in  fee  simple.21  Such,  at  least,  is  the  accepted  doctrine  in  a 
majority  of  the  States,  though  there  are  some  in  which  it  may 
not  prevail.22 

15  The   precept,   though   not  tech-  31   Iowa,  250;  Knox  v.  Leidgen,  23 

nically  process  within  the  constitu-  Wis.  292. 

tional    provision   requiring   all   pro-  19  Dunlap  v.  Gallatin  Co.,  15  111. 

cess  to  run  in  the  name  of  the  peo-  7;  Cram  v.  Cotting,  22  Iowa,  411. 

pie,  performs  the  office  of  an  execu-  20  Jones    v.    Devore,    8    Ohio.    St. 

tion,    and    is    the    authority    under  430.     Local  statutes  may  modify  or 

which    the    officer    sells:      Eagan    v.  change  the  doctrines  stated   in   the 

Connelly,   107  111.  458.  text. 

i6Holbrook   v.  Dickinson,  46   111.  21  Turner  v.  Smith,  14  Wall.  553; 

285.  Osterberg  v.  Union  Trust  Co.,  9  Chi. 

i7Dogan  v.  Griffin,  51  Miss.  782;  Leg.  News,  156;  Schaeffer  v.  People, 

McLaughlin    v.    Thompson,    55    111.  60  111.   179. 

219.  22  The    statute    usually    provides 

is  Bowman      v.      Thompson,      36  for  a  fee  simple:     It  is  held  in  sev- 

Iowa,  505;   Preston  v.  Van  Gordor,  eral      States,     however,     that     the 


632  ABSTRACTS    OF    TITLE. 

§  526.  Nature  of  Tax  Titles  —  Dependent  or  Inde- 
pendent. A  tax  title,  though  bearing  some  resemblance  to 
titles  derived  under  judicial  and  execution  sales,  differs  in  this, 
that  the  latter  are  strictly  derivative  titles,  and  dependent  not 
only  on  the  legality  of  the  procedure  of  transfer,  but  upon  the 
acts  of  former  owners.  A  tax  title,  on  the  contrary,  from  its 
very  nature,  has  nothing  to  do  with  the  previous  chain  of  title, 
nor  does  it,  in  any  way,  connect  itself  with  it.  The  person 
asserting  it  need  go  no  further  than  his  tax  deed,  and  the  former 
title  can  neither  assist  nor  prejudice  him.  The  sale  operates 
upon  the  land  and  not  upon  the  title  by  which  it  had  thereto- 
fore been  held.  It  matters  not  how  many  different  interests 
may  have  been  connected  with  such  title,  for  if  the  sale  has 
been  regularly  made,  the  land,  accompanied  by  a  new  and  ex- 
clusive legal  title,  goes  to  the  purchaser.  'No  covenant  running 
with  the  land,  nor  warranty,  or  other  incident  to  the  title  as 
it  formerly  stood,  passes  to  the  purchaser,  but  he  takes  it  by  a 
new,  independent  and  paramount  grant,  which  extinguishes  the 
old  title  and  all  the  equities  deepndent  upon  it.23 

The  statute  usually  pronounces  the  new  title  thus  acquired 
a  fee,  but  this  would  legally  follow,  even  though  the  statute 
were  silent,  where  no  other  estate  is  reserved  in  the  deed.  It 
must  be  understood,  however,  that  the  clause  of  the  statute 
which  provides  that  a  conveyance  resulting  from  a  sale  shall 
vest  in  the  grantee  an  "  absolute  estate  in  fee  simple  "  does  not 
mean  that  such  estate  shall  vest  in  the  grantee,  notwithstanding 
the  fact  that  the  law  has  not  been  complied  with  in  making 
the  sale,  but  refers  merely  to  the  quantity  of  the  estate  conveyed 
as  distinguished  from  a  lesser  estate.24 

grantee    of   a   tax   deed   takes    only  elaborate     discussion,    p.     *  535    et 

the  title   and  estate   of  the   former  seq. 

owner.     See  Sheaf  v.  Wait,   30  Vt.  24  Steeple    V.    Downing,    60    Ind. 

735.  478.     As    the    statute    provides    the 

23  Neiswanger     v.     Gwynne,      13  title  to  be  passed,  it  also,  as  a  rule, 

Ohio,  74;  do.  15  Ohio,  367;  Ross  v.  states  how  that  title  shall  be  given 

Barland,   1   Pet.  664;   Blackwood  v.  in  regard  to  prior  liens  and  incum- 

Van     Vliet,     30     Mich.     120.       See  brances,   and   sometimes   makes   the 

Blackw.   on  Tax  Titles   for  a  very  sale  subject  thereto.     Consult  local 


TAXES    AND    TAX    TITLES.  C33 

§  527.  Proceedings  Incident  to  Taxation.  Where  a 
statute  requires  a  series  of  acts  to  be  performed  before  the  own- 
ers of  property  are  properly  chargeable  with  the  tax,  such  acts 
are  conditions  precedent  to  the  exercise  of  the  powrer,  and  all 
the  requirements  of  the  statute  must  be  complied  with  or  the 
tax  will  be  invalid.25  These  proceedings  relate  to  the  valua- 
tion, assessment,  listing,  returns,  etc.,  and  do  not,  as  a  rule, 
properly  come  wdthin  the  scope  of  the  examiner's  duties.  They 
are  not  usually  shown  in  the  abstract,  unless  there  has  been  a 
special  direction,  and  when  required  are  usually  made  the  sub- 
ject of  a  separate  and  special  examination.  When  a  tax  deed 
is  relied  upon  as  the  foundation  of  title,  all  the  antecedent  steps 
become  material,  and  should  be  shown,  but  this  is  the  only  in- 
stance in  which  it  is  done.  Mere  irregularities,  not  going  to  the 
groundwork  of  the  tax,  do  not  vitiate  such  proceedings,26  and 
are  cured  by  special  statutes  of  limitation  which  exist  in  all 
the  States.27  The  subject  is  too  vast  to  open,  even  in  a  general 
way,  and  the  reader  must  be  referred  to  technical  works  on  the 
subject. 

§  528.  Description  of  Land — Assessors'  Plats.  Where 
lands  are  listed  or  assessed  for  taxation  they  must  ordinarily 
be  described  by  reference  to  the  government  surveys,  or,  if 
divided  into  lots,  then  by  reference  to  authenticated  plats. 
The  subject  of  private  subdivision  has  already  been  considered 
in  other  parts  of  the  work,  but  there  also  exists  in  many,  per- 
haps all,  of  the  States,  a  method  of  official  subdivision  for  the 
more  convenient  and  accurate  purposes  of  taxation.  The  power 
to  make  these  subdivisions  is  usually  delegated  to  the  assessor 
but  is  exercised,  as  a  rule,  only  when  land  can  not  be  otherwise 
described  than  by  noting  the  metes  and  bounds.  The  statute 
is  usually  very  explicit  in  regard  to  assessors'  plats  and  subdi- 

statutes  for  the  effect  of  tax  deeds  26  R.    R.    Co.    v.    Morris,    7    Kan. 

and  the  quantity  and  quality  of  the  210;    Greene  v.   Lunt,   58  Me.   518; 

estate  conveyed.  Parker    v.    Sexton,    29    Iowa,    421 ; 

25  Hewes    v.    Reis,    40    Cal.    225 ;  Thatcher  v.  People,  79  111.  597. 

ftivers    *;.   Thompson,   43   Ala.   033;  27  See  Thomas  v.  Stickle,  32  Iowa, 

Abbott  v.  Doling,  49  Mo.  302.  71. 


G34  ABSTRACTS    OF    TITLE. 

visions,  and  every  material  requirement  must  be  complied  with 
to  give  validity  to  the  plat  or  any  assessment  of  any  of  the 
divisions  thereof.  The  attention  of  the  examiner  is  therefore 
called  to  these  plats  whenever  they  appear  in  the  abstract,  and 
the  facts  of  conformity  and  sufficiency  of  description  should  be 
satisfactorily  shown.  Both  the  exact  location  and  quantity  must 
be  manifest,  and  the  plat  will  usually  be  fatally  insufficient 
so  far  as  the  subdivision  of  the  tract  for  the  purpose  of  de- 
scription of  its  parcels  for  taxation  is  concerned,  if  wanting  in 
these  particulars.28 

§  529.  Sale  for  Non-payment.  Taxation  is  regulated  by 
statute,  but  the  right  is  inherent  in  the  government,  and  while 
summary  remedies  are  given  by  law,  yet  taxes  when  assessed 
become  a  personal  debt,  to  be  collected  by  any  of  the  legal 
methods  incident  thereto,  should  the  government  choose  to  resort 
to  such  a  remedy.29  Usually,  however,  the  payment  of  a  tax 
is  enforced  by  a  sale  of  the  land  upon  which  it  has  been  im- 
posed. The  methods  employed  are  too  various  to  attempt  spe- 
cial mention,  every  State  providing  a  special  procedure  for 
this  purpose,  and  the  subject  can  only  be  treated  generally.  A 
tax  is  not  an  ordinary  debt,  however;  it  takes  precedence  of  all 
other  demands,  and  is  a  charge  upon  the  property,  without  ref- 
erence to  the  matter  of  ownership.  It  grows  out  of  the  per- 
petual lien  which  the  State,  by  virtue  of  its  sovereignty,  has 
upon  all  taxable  lands  within  its  limits,  and  the  property  may 
be  seized  and  sold,  although  there  may  be  prior  liens  or  incum- 
brances upon  it,  and  payment  enforced  to  the  exclusion  of  all 
other  creditors.30  Whatever  be  the  methods  employed,  the  pro- 
ceedings are  summary  in  their  nature  and  the  requirements  of 
law  must  be  strictly  pursued  or  the  whole  transaction  will  be 
void.31      When  special  proceedings  are  authorized  by  statute, 

28  See  People  v.  Heat,  107  111.  so  Keinhart  v.  Schuyler,  2  Gilm. 
581.                                                                    (111.)    473;  Dunlap  v.  Gallatin  Co., 

29  Mayor  of  Jonesboro  v.  McKee,       15  111.   7. 

2    Yerg.     (Term.)     167;    Dunlap    v.  31  Charles  v.  Waugh,  35  111.  315; 

Gallatin  Co.,  15  111.  7;  Binkert  v.  Cahoon  v.  Coe,  57  N.  H.  556;  Clarke 
Ry.   Co.,  98  111.   205.  v.   Rowan,    53   Ala.   401;    People  V. 


TAXES    AXB    TAX    TITLES.  635 

by  which  the  estate  of  one  man  may  be  divested  and  transferred 
to  another,  the  owner  has  a  right  to  insist  upon  a  strict  per- 
formance of  all  the  material  requirements  of  the  statute,  espe- 
cially those  designed  for  his  security,  and  the  non-observance 
of  which  may  operate  to  his  prejudice.32  It  is  not  the  policy 
of  the  law  to  deprive  the  citizen  of  his  property  by  sales  made 
on  account  of  the  government  through  its  officers,  who  have  no 
interest  in  the  matter,  without  putting  him  wholly  in  fault  in 
not  complying  with  his  obligations.33 

A  synopsis  of  the  special  proceedings  culminating  in  the 
sale  is  of  the  highest  importance  whenever  the  sale  is  relied 
upon  as  the  foundation  of  title,  but  in  ordinary  examinations 
tax  sales  are  shown  rather  in  the  nature  of  incumbrances  on 
the  title  or  charges  upon  the  land,  and  it  is  customary  to  show 
only  the  fact,  leaving  the  question  of  validity  to  be  decided  by 
other  and  special  searches.  For  this  purpose  tax  sales,  when 
still  subject  to  redemption  or  not  consummated  by  deed,  are 
shown  after  the  chain  and  under  a  classified  head,  the  abstract 
consisting  only  of  a  brief  mention  of  the  date  of  sale  and  tax 
for  which  the  sale  is  made,  with  reference  to  the  official  record ; 
a  brief  description  of  the  premises  sold;  and  the  name  of  the 
person  to  whom  the  certificate  issued.  Forfeitures  to  the 
State  are  treated  the  same  as  tax  sales.  The  following  will 
indicate  the  method : 

Tax  Sales. 


Sale  commencing  Sept  IS,  1880,  for  special  assessments  of  the 
City  of  Chicago. 
Record  37,  page  58. 

Lot  5,  in  East  half  of  Block  2k,  Canal  Trustees'  Sub- 
division of  West  half,  and  West  half  of  North  East  quarter 

Biggins,  96  111.  481;  Abbott  v.  Dol-  legal   in   its  character,  the  creature 

ing,  49  Mo.  302.  of    the    statute,    not    arising    upon 

32  Marsh  v.  Chestnut,  14  111.  223;  contract,  and  can  be  enforced  in  the 
Holbrook  v.  ■  Dickinson,  46  111.   285.  mode    provided    by    the   law    of    its 

33  Rivers    r.    Thompson,    43    Ala.  creation,   and   in   no   oilier   manner: 
633.     The    lien    of   taxes    is    purely  People  v.  Biggins,  96  111.  481. 


636  ABSTRACTS    OF    TITLE. 

of  Section  17,  Town  39  North,  Range  Ik,  East.     Sold 
Oct.  15,  1880,   {Warrant  No.  lf.,382,  for  macadamizing, 
etc.,  W.  Jackson  Street)  to  Asahel  Gage  for  $8.40. 
Sale  commencing  Aug.  2,  1875,  for  State  and  County  taxes  of 

187k-  i 

Record  22,  page  201. 

Lots  13  and  Ik  in  Block  10,  of  Rockwell's  Addition  to 
Brockton.  Sold  Sept.  25,  1875,  for  State  and  County 
taxes,  187k,  to  Asahel  Gage,  for  $51.95. 

Where  there  are  forfeitures  as  well  as  sales  these  are  shown 
in  much  the  same  manner. 

§  530.  Forfeitures.  The  class  of  forfeitures  to  which  this 
section  alludes,  is  based  upon  the  principle,  "  that  every  owner 
of  lands  hold  his  estate  upon  the  implied  condition  that  he  will 
furnish  a  list  of  his  taxable  estate,  and  promptly  pay  his  share 
of  the  common  burdens  assessed  against  the  entire  community ; 
and  if  he  omits  to  comply  with  the  condition,  and  his  estate  is 
offered  at  public  vendue,  and  no  purchaser  can  be  found  for  it, 
the  title  is  transferred  from  the  owner  to  the  State,  the  latter 
being  always  ready  to  bid  for  the  land,  when  no  other  bidder 
appears."  34  The  term  "  forfeit "  is  not  always  used,  but  the 
effect  in  every  State,  where  the  property  passes  to  the  State 
in  default  of  purchasers,  is  a  forfeiture.  A  forfeiture  operates 
'to  divest  the  title  of  the  original  owner,  though  ample  time  is 
always  allowed  for  redemption,  and  purchasers  of  forfeited 
lands,  where  the  law  has  been  strictly  complied  with,  will  ac- 
quire a  valid  title  from  the  State. 

A  note  of  forfeiture  is  sufficiently  expressed  as  follows: 

Forfeiture. 


Sale  commencing  Sept.  13,  1880,  for  State  and  County  taxes 
of  1S79. 

Record  23,  page  205. 

Lot  5,  of  Block   10,  in   Williams'  Subdivision  of  the 
North  East  quarter  of  Section  16,  Town  23  North,  Range 
34Blackw.  Tax.  Tit.   *4G0;   See  Clery  v.  Hinman,  11  111.  430. 


TAXES    AND    TAX    TITLES.  637 

IJf.  East,  of  the  3d  P.  M.,  was  forfeited  to  the  State  of 
Illinois,  Oct  15,  18S0,  for  tlie  non-payment  of  State  and 
County  taxes  of  1879.     Amount,  $55.00. 

§  531.  Tax  Sales — -Tax  Payer  as  Purchaser.  A  very 
erroneous  opinion  has  gained  currency  in  many  localities  that  a 
purchase  by  one  owning,  or  interested  in,  the  land  sold  for  taxes 
strengthens  a  title  previously  acquired,  and  hence  it  is  not  un- 
common to  find  tax  deeds  to  persons  already  possessing  legal 
interests  in  the  property.  Such  deeds,  however,  are  mere  nul- 
lities, for  it  is  a  proposition  beyond  dispute  that  one  whose 
duty  it  is  to  pay  a  tax  can  not  be  a  purchaser  of  property  offered 
for  sale  for  the  purpose  of  collecting  it.35  The  payment  of  the 
money,  in  such  case,  will  be  regarded  only  as  a  payment  of  the 
tax,  and  not  as  a  purchase  of  the  property ;  36  and  the  deed,  at 
best,  would  evidence  nothing  more  than  that  the  tax  on  which 
it  was  founded  was  satisfied,  the  lien  of  the  State  discharged, 
and  the  estate  restored  from  the  sale,  but  no  new  title  would 
be  created  or  transferred  by  it.37 

Nor  does  this  principle  apply  only  where  there  is  a  direct 
legal  obligation.  The  party  against  whom  a  tax  is  assessed  is 
directly  liable  for  the  tax,  as  is  also  a  purchaser,38  or  lessee,39 
who  has  contracted  to  pay  same,  and  in  these  cases,  where  there 
is  a  direct  legal  obligation,  there  can  be  no  question  about  the 
duty.  But  other  parties  may  acquire  an  interest  in  real  estate 
who  are  not  directly  responsible  for  the  taxes,  and  who  enter 

35  Douglas  v.  Dangerfieid,  10  46  Conn.  513;  Johnston  v.  Smith, 
Ohio,    152;    Busch    v.    Huston,    755       70   Ala.   108. 

111.  343;  Barton  V.  Moss,  33  111.  50;  37  Gould  V.  Day,  4  Otto    (U.  S.) 

Dunn  v.  Snell,  74  Me.  22;    Christy  405.     A   tax    deed,   however,    is    al- 

r.   Fisher,  58  Cal.  256;   Williamson  ways  color  of  title  and  where  pos- 

v.  Russell,  18  W.  Va.,  612;   Cooley  session  is  taken  under  it  and  such 

on  Taxation,  346;    Blackw.  on  Tax  possession     is     continued     for     the 

Tit.  400.  statutory    period    of    limitation    a 

36  Baily  v.  Doclittle,  24  111.  577;  title  may  be  predicated  upon  it. 
Ballame  V.  Forsythe.   13   How.    (U.  38  Fitzgerald    v.    Spain,    30    Ark. 
S*.)     18;    Clancy   V.   Elliott,    14    111.  334. 

456;  Middleton  Bank  v.  Bacharach,  39  Waggoner    v.    McLoughlin,    33 

Ark.   20L 


038  ABSTRACTS    OF    TITLE. 

into  no  contract  in  respect  to  them,  vet  may  be  so  situated  that 
it  is  their  duty  to  pay  them.  For  instance,  a  purchaser  of  the 
property  or  of  the  equity  of  redemption  subject  to  a  tax  lien 
may  be  compelled  to  pay  the  taxes  in  order  to  protect  his  own 
title.  Such  a  party  can  not  ordinarily  be  a  purchaser  of  a  tax 
title.  So,  too,  a  mortgagee  is  under  no  legal  obligation  to  pay 
the  taxes,  and  yet  he  may  be  compelled  to  pay  them  in  order 
to  protect  his  mortgage.  Although  there  may  be  cases  which 
hold  that  under  certain  circumstances  he  may  purchase  a  tax 
title,  yet  the  general  rule  is  that  he  can  not;  40  for  the  reason 
that  it  is  not  necessary  for  him  to  do  so.  He  may  pay  the  tax 
and  the  amount  paid  will  be  added  to  his  debt,  and  he  will 
hold  the  whole  property  as  security  therefor.  In  such  a  case 
it  is  unnecessary  to  complicate  the  legal  title  with  a  tax  deed, 
and  the  law  will  not  allow  it  to  be  done.  Nor  does  it  vary  the 
case  in  principle  if  the  person  paying  the  tax  owns  less  than  the 
whole  equity.  Whether  his  interest  be  worth  much  or  little, 
whether  he  owns  the  whole  or  a  part,  can  make  no  difference. 
In  either  case  if  his  interest  is  worth  protecting  he  will  pay 
the  tax,  and  in  neither  case  can  he  purchase  a  tax  title.  All 
such  persons  are  incapable  of  purchasing  at  a  tax  sale,  and  deeds 
to  them  convey  no  title.41 

§  532.  Hights  of  Purchasers.  A  purchaser  at  tax  sale 
is  not  affected  by  any  matter  pertaining  to  title  not  connected 
with  the  tax  proceedings,  nor  is  he  charged  with  notice  of  any 
facts  extraneous  thereto.  A  sale  for  taxes  is  not  subject  to 
the  rule  that  one  who  purchases  during  the  pendency  of  a  suit 
is  held  bound  by  the  decree  that  may  be  made  therein,42  for 
the  lis  pendens  only  relates  to  and  affects  voluntary  alienations 
by  the  defendant  pending  the  action.     It  has  nothing  to  do  with 

40  Williams  v.  Townsend,  31  N.  chase  the  property  when  sold  for 
Y.  411;  Sturdevant  V.  Mather,  20  taxes.  So  one  who  holds  a  quit- 
Wis.    576.  claim    deed    to    property    previously 

41  Middleton  Sav.  Bank  v.  Bach-  conveyed  may  purchase  same  at  tax 
arach,  46  Conn.  513;  Jacks  v.  Dyer,  sale:  Curtis  v.  Smith,  42  Iowa, 
31    Ark.    344.      Possession    under    a  665. 

deed  which  conveys  no  interest  will  42  Wright     V.     Walker,    30     Ark. 

not  disqualify  the   grantee   to   pur-       44. 


TAXES    AND    TAX    TITLES.  639 

parties  asserting  rights  independent  of  and  adverse  to  that  cf 
the  defendant,  and  where  one  acquires  title  under  a  sale  for 
taxes  he  is  not  bound  by  the  foreclosure  of  a  mortgage  given  by 
a  former  owner  of  the  land,  and  his  title  will  prevail  against 
that  of  the  purchaser  at  the  foreclosure  sale.43  It  is  a  cardinal 
rule,  however,  that  a  purchaser  at  a  tax  sale  comes  strictly  and 
rigidly  within  the  rule  of  caveat  emptor,4*  but  this  has  refer- 
ence to  the  methods  by  which  he  acquires  title,  and  not  to  an- 
tecedent matters. 

§  533.  Redemption.  The  subject  of  redemption  from  tax 
jales  bears  a  strong  analogy  to  the  satisfaction  and  discharge 
of  judgments,  and  raises  many  of  the  same  questions  in  regard 
to  the  method  of  treatment  in  the  abstract.  It  is  not  the  usual 
custom  of  examiners  to  make  special  mention  of  a  redemption, 
as  the  certificate  of  the  abstract  is  presumed  to  be  a  sufficient 
statement  of  the  condition  of  the  title  at  its  date.  But  in  view 
of  the  current  of  authority,  which  ever  inclines  to  limit  the  ex- 
aminer's liability  to  the  actual  occurrences  during  the  period 
covered  by  his  search,  irrespective  of  subsisting  but  previously 
contracted  liens,  it  would  seem  a  far  more  satisfactory  prac- 
tice, and  one  tending  to  greater  certainty  in  arriving  at  conclu- 
sions or  passing  opinions,  to  show  the  extinguishment  of  any 
and  every  lien  which  former  examinations  may  have  disclosed, 
except,  perhaps,  where  this  has  been  effected  by  the  statute  of 
limitations. 

From  two  to  three  years  is  the  period  ordinarily  allowed  in 
which  the  owner  or  interested  party  may  discharge  the  obliga- 
tion imposed  by  the  levy  of  the  tax  and  relieve  the  land  from 
its  burden.  During  this  period  the  purchaser  has  a  contingent 
interest,  which,  after  the  day  for  redemption  has  passed,  may 
ripen  into  an  absolute  title.  This  contingency  may  be  defeated 
by  payment,  and  when  such  is  the  case,  it  will  often  become  a? 
proper  a  matter  for  special  mention  as  a  release  or  discharge 

43  Becker  v.  Howard,  6  Thomp.  See  Smith  v.  Lewis,  2  Wesl  \';i.  :)!». 
&  C.   (N.  Y.)   603;  4  Hun   (N.  Y.),  44  Hamilton    v.    Valiant,    30    Md. 

359.      This     is     sometimes     denied.        139. 


640  ABSTRACTS    OF    TITLE. 

of  a  mortgage.  Where  the  sale  and  redemption  both  occur  dur- 
ing the  period  included  and  covered  by  the  dates  of  the  exam- 
ination the  whole  transaction  may  with  propriety  be  wholly  dis- 
regarded, since  it  only  amounts  to  a  payment  of  the  tax;  but 
where  a  former  examination  discloses  a  sale,  and  a  continua- 
tion is  made  during  the  redemption  period,  the  lien  in  the  mean- 
time having  been  extinguished,  such  fact  should  affirmatively 
appear,  and  should  the  abstract  be  silent  in  this  particular,  a 
requisition  for  further  information  should  be  made  by  counsel 
before  passing  the  title.  Many  examiners  show  redemptions 
by  a  marginal  note  on-  the  original  abstract  of  the  tax  sale,  and 
most  attorneys  prefer  this  method  as  it  effectually  disposes  of 
the  question  the  moment  it  is  raised. 

§  534.  Certificate  of  8ale.  Certificates  of  sale  are  rarely 
recorded,  though  they  undoubtedly  vest  in  the  purchaser  an 
equitable  interest  in  the  land  which  entitles  him  to  be  clothed 
with  the  legal  title  at  any  time  after  the  period  of  redemption 
has  expired,  and  before  his  right  has  been  barred  by  the  statute 
of  limitation.45  The  right  to  record  such  certificates,  and  as- 
signments  thereof 46  when  such  assignments  are  duly  sealed, 
attested  by  witnesses,  and  acknowledged  in  conformity  to  law, 
is  often  given  by  statute,  and  when  recorded  in  the  proper 
county  they  have  the  same  effect  as  other  records  therein.  When 
found  upon  the  records  they  are  shown,  if  prior  to  deed,  as  a 
lien  or  charge  upon  the  land  and  after  the  course  of  title  has 
been  exhibited ;  when  followed  by  deed  they  are  briefly  noted 
in  connection  with  that  instrument.  A  synopsis  of  a  certificate 
of  sale  simply  recites  the  facts  stated  therein.  The  form  will 
vary  as  the  certificate  may  be  made  in  pursuance  of  a  jrulg- 
ment,  as  in  Illinois ;  or  by  the  county  treasurer  under  the 
law,  without  judgment,  as  in  Wisconsin.  An  example  of  the 
latter  form  is  given.  The  reader  is  referred  to  illustrations  of 
sheriff's  certificates  in  other  parts  of  the  work. 

45  Blackw.   on   Tax   Titles,   *  372.  been    affected   in   the   hands   of   the 

4G  The   assignee   of   a   tax   certifi-  tax   purchaser:     Light  v:  West,  42 

cate  holds  it  subject  to  all  the  in-  Iowa,  138;  Besore  V.  Dosh,  43  Iowa, 

firmities   by    which    it    would    have  211. 


TAXES    AND    TAX    TITLES.  641 


Hugh     McDermott,     County 
Treasurer       of      Kenosha 
County,  Mis., 
to 
William  Goffe. 


Tax  Certificate. 

Dated,  etc. 

*  *  * 


Said  Treasurer  certifies 
thai  he  did,  at  public  auction, 
pursuant  to  notice  given  as  by  law  required,  on  May  1,  18S3, 
sell  to  William  Goffe,  (or  the  county  of  Kenosha,)  the  following 
described  real  estate  [describing  same]  for  $5.50,  being  the 
amount  due  for  taxes,  interest  and  charges  on  said  lands  for 
the  year  1882,  and  that  said  William  Goffe  (or  assigns)  will 
be  entitled  to  a  deed  of  same  in  three  years  from  date,  unless 
sooner  redeemed  according  to  law. 

§  535.  Tax  Deeds.  Neither  the  legal  nor  the  equitable 
title  to  lands  sold  for  non-payment  of  taxes  vests  in  the  pur- 
chaser until  the  execution  and  delivery  of  a  tax  deed.47  This 
deed  does  not  operate  ipso  facto  to  transfer  the  title  of  the  owner 
as  in  ordinary  deeds  between  individuals,  but  is  the  last  act 
of  a  series  of  proceedings  upon  the  regularity  of  which  it  de- 
pends for  its  character  and  effect.  It  is  not  title  in  itself,  nor, 
unless  aided  by  statute,  even  evidence  of  it.  Its  recitals  bind 
no  one,  and  it  creates  no  estoppel  upon  the  former  owner.48  The 
mere  production  of  the  deed,  in  the  absence  of  statutory  aid, 
creates  no  presumption  in  its  favor  until  all  the  anterior  pro- 
ceedings prescribed  by  law  have  been  affirmatively  shown  to 
have  been  complied  with,  when  it  becomes  conclusive  evidence 
of  title  according  to  its  extent  and  purport.  The  foregoing  doc- 
trine, which  long  obtained  in  this  country,  is  based  upon  the 
policy  that  it  is  better  that  the  purchaser  should  lose  the  small 
amount  of  his  bid  rather  than  the  owner  should  forfeit  a  valu- 
able estate,  where  the  proceedings  show  irregularity  or  illegal- 

47  Stephens    v.    Holmes,    26    Ark.  48  Blackw.   on  Tax  Titles,   *364; 

48;  Ins.  Co.  v.  Scales,  27  Wis.  640;       Jackson  v.  Esty,  7   Wend.   148. 
Bracket  v.  Gilmore,   15  Minn.  245; 
Lake  v.  Gray,  35   Iowa,  44. 
41 


642  ABSTRACTS    OF    TITLE. 

ity,49  and  the  burden  of  proving  title  under  tax  deeds  has  been 
thrown  upon  him  who  asserts  such  title.50 

§  536.  Continued  —  Statutory  Modifications.  Though 
the  rule  of  the  common  law,  that  he  who  affirms  the  existence 
of  a  material  fact  must  prove  it,  was  for  many  years  applied  to 
sales  for  taxes  in  all  its  unbending  rigidity,  until  the  astute- 
ness of  judicial  refinement  had  rendered  almost  inoperative 
all  legislation  providing  for  such  sales,  a  marked  change  is  now 
apparent  in  many  States.  Stringent  legislation  has  endeavored 
to  counteract  the  tendency  of  judicial  refinement,  by  declaring 
the  operation  and  effect  of  tax  deeds,  and  such  conveyances  in 
a  majority  of  the  States,  when  formal  and  duly  executed,  are 
now  taken  as  prima  facie  or  presumptive  evidence  of  the  regu- 
larity of  all  proceedings,  from  the  listing  or  valuation  of  the 
land  up  to  the  issuance  of  the  deeds.  A  few  States  have  gone 
so  far  as  to  declare  such  deeds  conclusive  evidence  of  every 
matter  or  fact  required  by  law  to  make  a  valid  sale  and  vest 
title  in  the  purchaser,  except  the  facts  of  exemption,  payment, 
and  redemption,  and  as  to  the  non-existence  of  those  facts  it  is 
made  prima  facie  evidence.51  This  doctrine,  however,  has  been 
expressly  repudiated  by  the  courts  as  an  unconstitutional  con- 
fiscation of  property,  and  the  rule  has  been  announced  that  the 
legislature  can  make  a  tax  deed  conclusive  evidence  of  the  regu- 
larity of  prior  proceedings  only  as  to  non-essentials  or  matters 
of  routine  which  rest  in  mere  expediency.52  But  the  owner  of 
property  can  not  be  precluded  from  showing  the  invalidity  of 
a  tax  deed  thereto  by  proving  the  omission  of  any  act  essential 
to  the  due  assessment  of  the  same,  the  levy  of  a  tax  thereon,  and 
the  sale  thereof  on  that  account.    As  to  the  performance  of  these 

49  Blackw.  on  Ta,x  Titles,  *68;  52  Acts  which  need  not  have 
Denning  v.  Smith,  3  Johns.  Ch.  been  required  in  the  first  place  —  as 
344;  Jackson  v.  Morse,  18  Johns.  the  affidavit  of  the  sheriff  to  the 
442.  delinquent     list  —  and     which     the 

50  Lyon  v.  Hunt,  11  Ala.  295;  legislature  may  by  a  curative  act 
Keane  v.   Cannonoran,   21   Cal.  291.  excuse    when     omitted:      Marx     v. 

51  See  Gvvynne  V.  Neiswanger,  18  Hawthorn,  12  Saw.    (C.  Ct.)   374. 
Ohio,  400;   Allen   v.  Armstrong,   16 

Iowa,  508. 


TAXES    AXD    TAX    TITLES.  643 

acts,  and  the  facts  necessary  to  constitute  them,  the  deed  can 
only  be  made  prima  facie  evidence.03 

It  would  seem  to  be  well  settled,  however,  that  the  legisla- 
ture has  the  power  to  make  a  tax  deed  prima  facie  evidence  of 
material  facts  upon  which  the  right  to  sell  and  convey  depends, 
and  when  this  has  been  done  it  has  the  effect  to  entirelv  chance 
the  burden  of  proof,  relieving  the  purchaser  therefrom  and  im- 
posing it  upon  the  person  who  attempts  to  controvert  the  deed  ;54 
but  to  have  this  effect  the  deed  must  be  regular  on  its  face  55 
and  display  an  apparent  conformity  to  law.  Whenever  it  is 
shown  that  any  essential  particular  in  the  anterior  proceedings 
has  been  irregular,  the  authorities  are  quite  harmonious  in  de- 
claring its  prima  facie  character  to  be  lost,56  and  when  the  prima 
facie  character,  as  established  by  statute,  is  overthrown,  the 
common  law  principles  stated  in  the  preceding  section,  at  once 
attach,  and  the  person  asserting  the  title  must  prove  by  satis- 
factory evidence  the  regularity  of  the  proceedings.57  The  law 
declaring  a  tax  deed  prima  facie  evidence  of  title,  does  not  dis- 
pense with  the  statutory  requirements  which  precede  the  sale, 
but  only  shifts  the  burden  of  proof  from  the  party  claiming 
under  the  deed  to  the  party  impeaching  it.5S 

§  537.  Formal  Parts.  The  form  and  substance  of  tax 
deeds  are  usually  prescribed  by  statute,  in  which  case  a  strict 
conformity  is  required  or  the  deed  will  be  void,59  though  if  de- 

5  3  Allen   v.   Armstrong,    16    Iowa,  67;     Merriam    v.    Dovey,    25    Neb. 

508;  MacCready  v.  Sexton,  29  Iowa,  618. 

356;   Raley  v.   Guinn,   76  Mo.   263;  5G    Sibley  v.  Smith,  2  Mich.  486; 

Callanan    v.  Hurley,   93  U.   S.   387;  Graves  v.  Bruen,   11  111.  431;   Tur- 

Steeple  v.  Dowing,  65  Ind.  501.  ney   v.  Yeoman,   16  Ohio,  24;   Ray- 

54Biscoe  V.  Coulter,  18  Ark.  423;  burn  v.  Kuhl,  10  Iowa,  92;  Thomp- 

O'Grady  V.  Barnishel,  23  Cal.  287;  son  v.  Ware,  43   Iowa,  455, 
Watson   r.   Atwood,   25   Conn.    313;  57  Hurd  V,  Brisner,  3  Wash.   1. 

Millikan  v.  Patterson.  91  Ind.  515;  58  Williams  v.  Kirtland,  13  Wall. 

Clark    v.    Conner,    28    Iowa,    311;  306. 

Hart  v.  Smith.  44  Wis.  213;  Lacey  59  Chandler  v.  Spear,  22  Vt.  388; 

v.  Davis,  4  Mich.   140;   Washington  Boardman  v.  Bourne,  20  Iowa,  134; 

V.    Hasp,    43    Kan.    324;    Taylor    v.  Kruger   V.  Knob,  22  Wis.  429.     The 

Wright,    121    111.    455.  form     in     such     case     becomes    sub- 

55  Taylor  v.  R.    R.  Co.,  45  Minn.  stance,    and    must    be    strictly    pur- 


644  ABSTRACTS    OF    TITLE. 

fective  a  new  deed  will  usually  issue  to  the  person  entitled,60 
and  the  deed  will  not  be  avoided  for  slight  irregularities  or 
variances  from  the  statutory  form.61  The  ordinary  incidents  of 
deeds  attach  to  conveyances  of  land  sold  for  taxes  and  in  most 
respects  they  stand  upon  the  same  footing  as  deeds  between 
individuals.62  To  attempt  'an  enumeration  of  the  special  dis- 
tinctive features,  however,  would  be  to  refer  to  the  statutes  of 
every  State  in  the  Union,  and  not  alone  to  one  but  to  many,  as 
few  subjects  have  been  so  harassed  by  legislative  tinkering,  both 
as  to  the  methods  of  procedure  and  its  evidence,  as  the  sale  of 
land  for  taxes.  But  inasmuch  as  the  deed  does  not  derive  its 
validity  from  its  capacity  as  an  independent  conveyance  to 
transfer  the  estate  described  in  it,  but  from  the  existence  of 
a  power  and  compliance  with  prescribed  conditions,  it  should 
show  upon  its  face  a  proper  exercise  of  the  power  in  pursuance 
of  which  it  purports  to  have  been  executed.63  This  rule  is  of 
uniform  operation  everywhere.  All  the  recitals  provided  by 
law,  which  go  to  show  full  compliance,  are  necessary  and  in- 
tegral parts,  and  the  failure  to  recite  any  one  of  the  prerequisites 
to  a  valid  sale  will  raise  a  presumption  that  the  omitted  require- 
ment was  not  complied  with.64  The  execution  and  authentica- 
tion are  purely  matters  of  local  statutory  regulation. 

sued;   Atkins  V.  Kinman,  20  Wend.  son  v.  Roberts,  11  Wend.  425;  Tol- 

249.  man  v.  Emerson,  4  Pick.   100. 

60  Finley  v.  Brown,  22  Iowa,  538;  04  Long  v.  Burnett,  13  Iowa,  20; 
Woodman  V.  Clapp,  21  Wis.  350.  Lain  v.   Cook,   15   Wis.   446;   Large 

61  Bowman  V.  Cockerill,  6  Kan.  v.  Fisher,  49  Mo.  307.  A  minis- 
311.  terial    officer,    in    making    a    return 

62  Blakely  V.  Bestor,  13  111.  708.  or  recital  as  to  how  he  executed 
The  construction  of  a  tax  deed  in  a  power,  must  set  out  the  facts 
respect  to  the  description  of  the  and  the  manner  in  which  he  per- 
land  conveyed  must  be  the  same  formed  the  acts,  and  let  the  court 
as  if  such  description  were  used  in  determine  whether  they  comply 
a  deed  between  private  individu-  with  or  are  in  accordance  with  the 
als.  The  doctrine  of  strict  con-  law.  The  sale  of  property  for 
struction,  as  applied  to  the  execu-  taxes  is  an  ex  parte  proceeding, 
tion  of  naked  statutory  powers,  The  officer  acts  at  his  own  peril, 
has  no  application  in  such  case:  and  must  perform  every  prerequi- 
Blakely  I'.  Bestor,  13  111.  708.  site  required  by  statute   before  the 

63  Blackw.  Tax  Tit.   *368;   Jack-  title    of   a    citizen    to   his    property 


TAXES    AND    TAX    TITLES, 


645 


The  later  forms  of  tax  deeds  prescribed  by  statute  are  very 
short  and  concise,  and  the  recitals  confined  to  a  few  material 
points,  while  their  legal  effect  and  operation  is  expressly  de- 
fined as  in  case  of  deeds  between  individuals  after  statutory 
forms.  The  execution  of  the  deed  is  confided  to  the  county 
clerk,  or  other  officer  having  the  custody  of  the  tax  records.  A 
statutory  deed  as  prescribed  in  Illinois  and  many  of  the  Western 
States  may  be  shown  in  the  abstract,  as  follows: 


E.  F.  C.  Klokke,™  County  ^  f*^' 

Dated    etc 
Clerk  of  Cook  Co.,  ///., 

to 

Hiram   Johnson. 

Doc.   203,013. 

J 

Recites,  that  at  a  public  sale  of 
real  estate  for  non-payment  of  taxes,  made  in  the  county  afore- 
said on  Oct.  12,  1876,  the  following  described  real  estate  was 
sold,  to-ivit:  [describing  same]  and  same  not  having  been  re- 
deemed from  said  sale,  and  it  appearing  that  the  holder  of  the 
certificate  of  purchase  has  complied  with  the  law  necessary  to 
entitle  him  to  a  deed  of  said  real  estate: 

Therefore,  said  county  clerk,  in  consideration  of  the  premises 
and  by  virtue  of  the  statute ,  grants  and  conveys  to  said  second 
party  the  real  estate  hereinbefore  described,  subject  to  any  re- 
demption provided  by  law. 

Signed  by  said  clerk,  and  the  seal  of  the  County  Court  af- 
fixed. 

Acknowledgment. 


can  be  taken  from  him.  The  deed 
must  show  affirmatively  that  the 
law  has  been  complied  with  in  all 
particulars:  Spurlock  v.  Allen,  40 
Mo.  178;  Abbotl  V.  Doling,  49  Mo. 
302;  Annan  V.  Baker.  40  X    II.  161. 


65  Where  the  county  is  the 
grantor,  it  must  be  named  as  such. 
while  the  procurement  of  the 
county  clerk  may  be  shown  in  the 
execution. 


G46  ABSTRACTS    OF    TITLE. 

Inasmuch  as  the  deed  is  statutory  and  can  only  be  in  one 
form,  a  shorter  method  is  sometimes  adopted,  which,  after  the 
caption  and  formal  parts  relating  to  dates  and  record,  would 
read  somewhat  in  this  manner: 

Conveys  (with  other  property)  Lot  56,  in  Block  2,  in  Canal 
Trustees'  Subdivision  of  the  south  east  quarter  of  Section  87, 
T.  39,  N.  B.  Ik  E.  of  3d  P.  11.,  Cook  Co.,  Ills.,  sold  Oct  12, 
1876,  reciting  sale  of  same  for  non-payment  of  taxes. 

§  538.  Effect  of  Deed  as  Evidence.  The  form  last  con- 
sidered, and  which  will  not  vary  materially  from  that  now  in 
general  use  where  a  statutory  form  is  prescribed,  is  very  meager 
in  recitals.  Its  effect  as  evidence  is  dependent  on  the  statute, 
which  has  made  it  prima  facie  evidence,  in  all  controversies  and 
suits  in  relation  to  the  right  of  the  purchaser,  or  those  claiming 
under  him,  to  the  property  thereby  conveyed,  of  the  following 
facts :  That  the  property  conveyed  was  subject  to  taxation  at 
the  time  the  same  was  assessed,  and  had  been  listed  and  assessed 
in  the  time  and  manner  required  by  law ;  that  the  taxes  .or  as- 
sessments were  not  paid  at  any  time  before  the  sale ;  that  the 
property  had  not  been  redeemed  from  the  sale  at  the  date 
of  the  deed ;  that  it  Avas  advertised  for  sale  in  the  manner  and 
for  the  length  of  time  required  by  law;  that  it  was  sold  for 
taxes  or  special  assessments,  as  stated  in  the  deed ;  that  the 
grantee  in  the  deed  was  the  purchaser  or  assignee  of  the  pur- 
chaser; that  the  sale  was  conducted  in  the  manner  required  by 
law.66 

In  addition,  any  judgment  67  for  the  sale  of  real  estate  for 
delinquent  taxes  estops  all  parties  from  raising  any  objections 
thereto  or  to  a  tax  title  based  thereon,  which  existed  at  or  before 
the  rendition  of  such  judgment,  and  could  have  been  presented 

66  R.  S.  111.   1874,  Chap.  120;   R.  county    treasurer,    or    some    other 

S.  Wis.   1878,  Chap,  50,  and  see  R.  designated  officer,  is  given  power  to 

S.  Ind.  1S76,  chap.   123.  sell    lands    returned    as    delinquent 

6  7  No    application    for    judgment  after  notice  has  been  given 
is  required  in  many  States,  but  the 


TAXES    AND    TAX    TITLES.  647 

as  a  defense  to  the  application  for  such  judgment  in  the  court 
wherein  the  same  was  rendered,  and  as  to  all  such  questions  the 
judgment  itself  is  declared  to  be  conclusive  evidence  of  its  regu- 
larity and  validity  in  all  collateral  proceedings,  except  in 
cases  where  the  tax  or  assessment  has  been  paid,  or  the  property 
was  not  liable  to  the  tax  or  assessment. 

The  effect  of  statutes  similar  to  the  foregoing  and  of  such 
statutes  as  have  been  enacted  to  quiet  tax  titles  and  secure  the 
property  conveyed  by  tax  deeds,  has  been  to  give  stability  to 
such  deeds  and  remove  the  chances  of  reinvesture  in  the  original 
owner.  Yet  even  in  the  face  of  such  statutes  the  courts  still 
cling-  to  the  former  doctrines  in  this  respect  and  critically  in- 
spect tax  "deeds  when  offered  in  support  of  title,68  and  where  a 
deed  is  void  upon  its  face,  as  when  there  is  a  want  of  power  on 
the  part  of  the  officer,  or  where  there  is  included  in  the  amount 
of  the  sale  that  for  which  the  land  could  not  be  sold,  and  which 
is  entirely  unauthorized,  it  has  been  held  not  to  divest  the  owner 
of  his  title  to  the  land,  even  though  the  special  limitation  of  the 
statute  has  run  in  favor  of  such  deed.69  In  respect  to  the  de- 
scription of  the  land  conveyed,  a  tax  deed  is  governed  by  the 
same  rules  of  construction  as  other  deeds.70 

In  this  connection  the  attention  of  counsel  is  directed  to  a 
practice  often  observable  where  spirited  biddings  attend  tax 
sales.  In  some  States  it  is  provided  that  the  officer  conducting 
the  sale  shall  sell  so  much  of  the  land  as  a  purchaser  is  willing 
to  bid  the  amount  of  the  tax  upon.  This  has  resulted  in  sales 
of  infinitesimal  portions  and  it  is  not  uncommon  to  meet  with 
tax  deeds  of  the  east  vigintillionth  of  a  tract.  These  deeds 
are  practically  nullities,  and  do  not  even  cast  a  cloud  upon  the 
title.     The  portion  of  the  lot  which  such  a  deed  purports  to 

68  A  statute  which   makes   a  tax  Iowa,     356;     Cooley    on    Taxation, 

deed  conclusive  evidence,  is  in  der-  356;    Blackw.  on   Tax  Tit.  79. 

oration    of    the    common    law    and  69  Annan  v.  Baker,  49  N.  H.  161; 

must  be  strictly  construed:     Gavin  Knox    v.    Cleveland,    13    Wis.    245. 

V.    Shuman,    23    Ind.    32;    and    see  But    see    Dalton    V.    Lucas,    63    111. 

Beekman    v.    Bigham,    1    Seld.     (N.  337. 

Y.)    366;    McCready   v.    Sexton,   39  70  Blakely  v.   Bestor,   13   111.  708. 


648  ABSTRACTS    OF    TITLE. 

convey  can  neither  be  found  nor  identified  and  is  not  suscepti- 
ble of  a  possession  of  any  kind.  Hence,  as  the  land  described 
has  no  practical  existence  the  deed  which  purports  to  convey 
it  really  conveys  nothing.  Such  a  deed  has  been  held  void 
on  its  face.71 

In  a  majority  of  the  States  application  for  a  tax  deed  must 
be  made  within  a  stated  time,  usually  one  year  after  the  ex- 
piration of  the  redemption  period.  In  the  event  that  the  deed 
shall  not  be  taken  out  and  recorded  within  the  time  allowed 
therefor  both  the  certificate  and  the  sale  upon  which  it  is  based 
becomes  void.72  It  would  seem,  therefore,  that  where  a  deed 
is  found  upon  record  after  the  time  so  allowed,  it  may  safely 
be  disregarded  in  making  an  opinion  of  title,  the  invalidity 
being  apparent  on  its  face.  But  if  the  holder  of  the. certificate 
has  been  prevented  from  obtaining  a  deed  within  the  prescribed 
period,  either  by  injunction'  or  refusal  of  the  proper  officers  to 
issue  same,  and  these  facts  are  recited  in  a  deed  afterward 
issued,  then  the  time  during  which  he  has  been  so  prevented 
may  be  excluded  from  the  computation.73 

§  539.  Tax  Deed  —  Possession  —  Limitation.  Eadical 
defects  in  tax  sales  and  resulting  conveyances  may  be  remedied 
in  many  of  the  States,  by  compliance  with  curative  statutes 
which  provide,  that  where  purchasers  unite  possession  and 
payment  of  taxes  for  a  definite  period  to  the  tax  deed  an  un- 
impeachable title  inures  to  such  purchaser ;  and  this,  even 
though  on  its  face  the  deed  shows  that  the  sale  was  irregular, 
if  there  is  nothing  to  charge  the  purchaser  with  actual  bad 
faith.74  Good  faith  is  always  presumed  until  the  contrary  is 
made  to  appear,  and  is  imported  by  the  deed  itself.75  Where 
the  holder  of  the  tax  title  has  become  entitled  to  the  protec- 
tion of  the  statute,  all  questions  as  to  the  regularity  of  the 

71  Petty  V.  Beers,  224  111.   129.  Compare    Bowman     v.     Wettig,    39 

72  Gage  v.  Reid,  118  111.  35;  111.  416;  and  see  Geekie  v.  Kirby 
Fuller  v.  Shedd,   161   111.  496.  Carpenter  Co.,  9  Reporter,  37. 

7  3  These    matters    are    statutory.  75  Dickenson   V.    Breeden,    30    111. 

Consult  local  statutes.  279. 

7  4Dalton   v.    Lucas,    63    111.    337. 


TAXES    AND    TAX    TITLES.  C40 

lax  proceedings  are  set  at  rest,  except,  perhaps,  those  'which  con- 
cern the  power  and  jurisdiction  of  the  taxing  officers  or  the  lia- 
bility of  the  land  to  taxation.  The  tax  deed  then  becomes  con- 
clusive evidence  that  the  taxes  were  properly  levied,  and  that  all 
the  requirements  of  law  were  complied  with.70  But  where  a 
deed  discloses  on  its  face  that  it  is  illegal,  and  has  been  exe- 
cuted in  violation  of  law,  a  statute  of  limitation  can  not  be 
brought  in  to  aid  its  validity.77  The  constitutionality  of  spe- 
cial statutes  providing  for  a  shorter  period  than  that  provided 
in  the  general  statute  of  limitations  has  been  the  subject  of 
much  debate,  and  is  not  yet  a  settled  question ;  but  there  can 
be  no  doubt  that  a  defective  deed,  though  invalid  as  a  convey- 
ance, will  yet  be  admissible  as  color  of  title,  and  when  followed 
by  actual  adverse  possession  will  set  the  statute  in  operation.78 
§  540.  Tax  Abstracts.  Whenever  a  tax  deed  is  relied  on 
as  a  foundation  of  title  which  is  independent  of  and  adverse 
to  all  other  titles,  particularly  that  of  the  person  who  was  last 
seized  of  the  fee,  a  full  exposition  of  the  method  by  which  the 
right  was  acquired  is  an  essential  preliminary  to  demonstrate 
the  validity  of  all  succeeding  conveyances.  The  tax  deed,  un- 
aided by  statute,  is  not  sufficient  to  demonstrate  title,  though 
it  may  be  prima  facie  evidence  of  such,  but  the  prior  steps  must 
be  shown  and  all  the  requisites  necessary  to  a  complete  and  per- 
fect title  under  the  statute  must  be  fully  and  succinctly  stated.79 
An  abstract  of  a  tax  title  may  consist  of  a  synopsis  of  the  pro- 
ceedings from  the  listing  or  assessment  to  the  sale  and  issuance 
of  deed,  with  all  the  material  matters  copied  in  full ;  or  if  so 
directed,  a  narrative  statement  of  what  was  done,  the  times, 
manner,  place,  etc. ;  but  all  sufficiently  explicit  to  enable  coun- 

76  Knox    V.    Cleveland,     13    Wis.~7-313  ;  Chapman  v.  Templeton.  53  Mo. 

245.  463;   Washburn  V.  Cutler,  17  Minn. 

77Shoat   v.    Walker,   6   Kan.    65.  361;  Wing  V.  Hall,  44  Vt.  118. 
In  this   case   the   law   under   which  79  Mr.   Blackwell   in   his   work  on 
the  deed    was   issued   had   been   re-  Tax  Titles  gives  sonic  very  valuable 
pealed   prior   to   such   issue:     Com-  forms  for  an  abstract  of  this  char- 
pare  Dalton  v.  Lucas,  63  111.  337.  aeter.     See    Blackw.    on    Tax    Tit. 

7*  Dillingham   v.   Brown,   38   Ala.  Appendix. 


650  ABSTRACTS    OF    TITLE. 

sel  to  see  that  every  material  step  has  been  taken,  and  that  in 
a  proper  and  legal  manner. 

§  541.  Special  Assessments.  In  addition  to  the  ordi- 
nary charges  annually  imposed  by  the  State,  and  which  are 
usually  designated  as  taxes,  the  examiner  must  also  search  for 
what  are  generally  termed  "  assessments."  An  assessment,  as 
distinguished  from  other  forms  of  taxation,  means  a  special  or 
local  imposition  upon  property  in  the  immediate  vicinity  of 
municipal  improvements  which  is  necessary  to  pay  for  such 
improvements,  and  is  laid  with  reference  to  the  special  benefit 
which  the  property  is  supposed  to  have  derived  therefrom.80  A 
properly  prepared  abstract  should  show  all  confirmed  special 
assessments  against  the  property  under  investigation  which  re- 
main unpaid  at  the  date  of  the  certificate.  The  statement  may 
be  brief  but  should  comprise  such  data  as  will  fully  acquaint 
counsel  with  all  necessary  particulars  and  readily  enable  any 
person  interested  to  refer  to  the  original  sources  of  informa- 
tion. Assessments  are  shown  as  appendices  in  connection  with 
'statements  of  unpaid  taxes  and  tax  sales.  The  following  will 
be  a  sufficient  mention : 

Special  Assessments. 


Assessment,  Doc.   2J+,21G,  warrant  21f-,712,  for  a  plank  side- 
walk on  Ridge  Avenue,  confirmed  Feb.  15,  1900,  ivas 
laid  on  Lot  11,  Block  5,  aforesaid. 
Amount  of  assessment,  $15.00. 

Sometimes  the  entire  sum  of  an  assessment  is  divided  into 
fractional  parts  and  the  payment  extended  over  a  series  of 
years.  When  such  is  the  case  the  fact  should  be  noticed  and 
the  installments  paid  and  unpaid  should  find  appropriate 
mention. 

80  Hale  v.  Kenosha,  29  Wis.   599.  for    public    'improvements,    but    it 

In    many    respects    the    system    is  seems   to   be   too   firmly   established 

vicious    and    unjust,    being    an    at-  to  be  questioned  at  this  time, 
tempt  to  compel  individuals  to  pay 


CHAPTER  XXX. 


DESCENTS. 


§  542. 

Title  by  descent. 

§  557. 

543. 

Nature,  operation  and  inci- 

dents of  the  title. 

558. 

544. 

Inheritance     as     dependent 

559. 

on  seizin. 

560. 

545. 

Heirship,     its     rights     and 

561. 

privileges. 

562. 

546. 

The  line  of  succession. 

563. 

547. 

General  rule  of  descents. 

548. 

The  right  of  representation. 

564. 

549. 

Preferences. 

550. 

Who   may   take  by   descent 
—  aliens. 

565. 

551. 

Continued — Adoptive   heirs. 

566. 

552. 

Ancestral      estates  —  Half 

567. 

blood. 

568. 

553. 

Surviving    consorts. 

569. 

554. 

Coparceners. 

555. 

What   descends. 

570. 

556. 

How   affected    by    ancestral 

covenants. 

571. 

Liability  for  ancestral  cov- 
enants. 

Creditor's   liens. 

Equitable    conversion. 

Proof  of  heirship. 

Proof  of  adoption. 

Proof  of  a  death. 

Continued  —  Official  regis- 
tration. 

Continued  —  Probate  of 
death. 

Proof  of  birth  and  legiti- 
macy. 

Presumption   of  legitimacy. 

Validity  of  descents. 

Abstract  of  descents. 

Continued  —  Probate  pro- 
ceedings. 

Settlement  without  admin- 
istration. 

Escheat. 


§  542.  Title  by  Descent.  The  best  known  but  least  un- 
derstood title  to  land  is  that  which  the  law  raises  for  the  heir 
upon  the  death  of  the  ancestor.1  It  is  called  title  bj  descent, 
and  though  for  practical  purposes  it  is  regarded  as  a  new  title 
springing  from  the  death  of  the  ancestor,  and  when  asserted 
must  be  so  proved,  yet  in  reality  it  is  but  a  continuation  of 
the  ancestor's  title,  which  the  law  casts  upon  the  heir  at  the 
moment  of  the  ancestor's  death.2     The  heir  is  regarded  in  law 


l  The  term  "  ancestor,"  when 
Used  with  reference  to  the  descent 
of  real  property,  embraces  all  per- 
sons, collaterals  as  well  as  lineals, 
through    whom    an    inheritance    is 


derived:      Wheeler    V.     Clutterhuck, 
52  N.  Y.  67. 

2  Hopkins  v.  McCann.  19  111.  113; 
Marshall  v.  Rose,  86  111.  374. 


651 


652  ABSTRACTS    OF    TITLE. 

as  a  legal  appointee  to  receive  the  title,3  and  this  appointment 
he  can  neither  disclaim  nor  avoid.4  Whenever  the  death  of  any 
person  is  shown,  until  rebutted,  the  presumption  is  that  he  died 
intestate,5  and  that  his  heirs  take  his  estate  under  the  laws  of 
descent.0  Posthumous  children  take  in  all  respects  as  though 
they  had  been  born  in  the  life-time  of  the  intestate.7 

§  543.  Nature,  Operation  and  Incidents  of  the  Title. 
The  title  of  an  heir  is  not  so  much  an  acquisition  as  a  suc- 
cession. The  death  of  the  ancestor  does  not  create  a  title,  but 
rather  confirms  in  the  heir  that  which  was  previously  inchoate, 
uncertain  and  defeasible.  "  An  estate  of  inheritance  under 
the  feudal  law,"  says  Mr.  Bingham,8  "  existed  only  in  the 
contract  between  the  lord,  for  himself  and  his  heirs  on  the  one 
side,  and  the  vassal,  for  himself  and  his  heirs  on  the  other.  The 
one  contracted  that  the  other  might  have  the  possession  and  oc^ 
cupation  of  certain  lands,  usually  upon  the  condition  of  render- 
ing in  return  therefor  certain  rents  and  services,  which  the 
latter  agreed  to  pay  and  perform.  The  heirs  of  each  party  were 
expressly  named,  and  regarded,  in  the  eyes  of  the  law,  as  parties 
to  the  contract ;  and,  when  the  original  parties  died,  the  heirs 
became  the  real  and  acting  parties  to  the  contract;  and  so  par- 
ties continued  to  succeed  each  other  from  one  generation  to 
another,  so  long  as  there  were  heirs  capable  of  becoming  parties. 
This  contract  right  of  possession  of  the  lands  constituted  what 
is  known  in  the  law  as  an  estate  of  inheritance,  or  an  estate 
in  fee ;  and  the  succession  of  one  person  on  the  death  of  an- 
other, is  what,  in  more  recent  times,  is  said  to  be  the  acquisi- 
tion of  title  by  descent." 

3  Coke  Lit.  191.  that   property  by   will,   whether   he 

4  Wms.   Real  Prop.   75 ;   2   Black.       left  will   or  not. 

Com.   201;    3  Wash.   Real  Prop.   6;  6  Lyon   V.   Kain,   36   111.   362.     In 

Moore  v.  Chandler,  59  111.  466.  all  cases  of  intestacy   the      lex  rei 

5  The     word     "  intestate "     prop-  sitce   governs   the   descent :      Lingen 
erly    signifies    a    person    who    died  V.  Lingen,  45  Ala.  410. 

without   leaving  a  will;   but  where  7  Smith  v.  McConnell,  17  111.  135; 

it  is  used  with  respect  to  particular  Sansberry  V.  McElroy,  6  Bush 
property,   it  signifies  a   person   who        (Ky. )  440. 

died  without  effectually  disposing  of  8  Bing.   on   Descents.   2 ;    and   see 

Watk.  on  Descents,  65. 


DESCENTS.  653 

The  rules  governing  the  method  of  descent  and  the  classes  of 
heirs  who  shall  take,  as  well  as  the  order  in  which  they  shall 
take,  have  been  many  times  changed ;  the  nature  of  the  estate 
has  been  enlarged;  the  right  of  alienation  during  life  and  dis- 
herison after  death  has  been  given  to  the  ancestor;  the  est  ale 
may  also  be  diverted  from  the  heir  to  satisfy  the  ancestor's 
debts ;  yet  the  fundamental  principle  of  inheritance  has  re- 
mained practically  unchanged.  The  contract  on  the  part  of 
the  State  as  evidenced  by  the  original  grant  still  is,  that  the 
grantee  and  his  heirs  may  hold,  possess  and  enjoy  the  land, 
and  on  the  death  of  the  ancestor  the  heir  succeeds  to  his  rights 
in  virtue  of  the  original  agreement,  as  strictly  as  though  the 
right  or  power  of  alienation  did  not  exist.  The  estate  held  by 
this  title  possesses  none  of  the  attributes  of  the  ancient  feudal 
estate,  however,  but  is  entire  in  the  ancestor  and  his  heirs,  with 
no  reversion  or  other  feudal  incident.9  While  the  State  may 
still  exercise  the  right  of  escheat  yet  this,  under  modern 
statutes,  is  in  no  proper  sense  a  reversion. 

§  544.  Inheritance  as  Dependent  upon  Seizin.  It  was 
a  primal  rule  of  the  common  law  that  no  person  could  inherit 
real  estate,  unless  he  was  heir  to  the  person  last  seized.  Under 
the  application  of  this  rule  it  was  not  sufficient  to  be  heir  to 
the  person  who  last  had  the  right  to  the  land,  but  not  the  actual 
seizin.  This  rule  grew  out  of  the  feudal  doctrine,  which  re- 
quired the  heir  to  be  of  the  blood  of  the  first  purchaser,  and 
the  seizin  of  the  last  possessor  was  regarded  as  presumptive 
evidence  of  this  fact.10  The  rule  was  subject  to  some  exceptions 
in  England.  In  this  country  it  has  never  been  adopted  in  a 
majority  of  the  States,  while  in  the  others  it  has  been  expressly 
abrogated,  and  every  possible  right  or  title  which  the  ancestor 
may  have  had  in  land,  whether  accompanied  by  actual  seizin 
or  possession,  or  not,  is  rendered  transmissible  by  inheritance, 
with  the  exception  of  estates  for  years,  which  are  regarded 
as  chattels,  and  estates  for  his  own  life.11     The  word  "  seizin  " 

9  Haynes    V.   Bourn,   42   Vt.    086;  10  Co.    Lit.    14;     Watk.    on    Desc. 

Wallace    v.    Harmstad,   44    Pa.    St.       (>">. 
423.  ii  Kent    Com.    388;    Jackson    V. 


654  ABSTRACTS    OF    TITLE. 

is  now  equivalent  to  "  ownership,"  and  though  the  term  is  still 
retained  both  in  the  statutes  and  the  language  of  the  courts,  its 
legal  significance  does  not  extend  further  than  above  stated,  and 
is  in  no  way  dependent  upon  possession.  Every  right  or  inter- 
est, legal  or  equitable,  to  which  the  intestate  was  in  any  manner 
entitled  at  his  decease,  except  estates  which  come  within  the 
definition  of  chattels  real,  are  valid  subjects  of  descent. 

§  545.  Heirship  —  Its  Rights  and  Privileges.  The 
title  of  an  heir  is  held  in  his  own  right,12  subject  only  to  the 
payment  of  the  debts  of  the  ancestor,13  or  the  fulfillment  of  his 
covenants,14  and  though  he  may  afterward  be  divested  by  the 
decree  of  the  probate  court  and  sale  by  the  administrator,  yet 
until  such  contingency  he  is  the  owner,  and  entitled  to  all  rents, 
profits  or  other  beneficial  incidents  flowing  from  the  land.15 
Subject  to  the  lien  of  the  creditors,  he  may  make  any  disposi- 
tion of  the  land  he  may  choose,  and  after  due  probate  and  ad- 
ministration, together  with  an  extinguishment  of  the  ancestor's 
debts,  the  title  becomes  perfect  in  him  or  his  assigns.16  He  is 
favored  by  the  law,  and  his  inheritance  is  never  defeated  except 
by  the  clearest  proof  of  intention  on  the  part  of  the  ancestor, 
and  although  he  is  expressly  excluded  by  the  terms  of  a  will, 
yet  unless  some  valid  and  effectual  disposition  of  the  land  is 
made  to  some  other  person,  it  descends  to  him  by  operation  of 
law,  and  in  case  of  an  invalid  or  insufficient  devise,  he  takes  in 
preference  to  the  residuary  devisee.17 

§  546.  The  Line  of  Succession.  The  law  invests  the 
heir  with  the  title  of  the  ancestor,  but  it  also  designates  who 
is  to  be  that  heir,  and  in  this  respect  is  rigid,  arbitrary  and 

Hendricks,  3  John.  Cas.  214;  Bates  This  old  rule  has  been  infringed  in 

V.  Schraeder,  13  John,  260;  3  Watk.  some   States  by   permitting  the  ad- 

(Ohio)   333;   Williams  v.  Amory,  14  ministrator   to   take   the   rents    and 

Mass.  20.  profits  pending  the  final   settlement 

1 2  Wallbridge     v.     Day,     31     111.  of  the  ancestor's  estate. 

379.  lOVansyckle    r.     Richardson.     13 

13  Foltz  r.  Prouse,  17  111.  487;  111.  171;  Austin  V.  Bailey,  37  Vt. 
Cockerel   r.   Coleman,    55   Ala.    583.       219. 

14 Miller   v.    Bledsoe,   61    Mo.    96.  iTHaxton   V.   Corse,    2   Barb.   Ch. 

15  Foltz    V.    Prouse,    17    111.    487.       506;  Rosevelt  v.  Fulton,  7  Cow.  71. 


DESCENTS.  655 

unyielding.18  The  common  law  canons  of  descent 19  have  no  ap- 
plication in  the  United  States,  but  rules  have  been  established 
in  every  State  that  regulate  the  line  of  succession  and  declare 
who,  under  certain  conditions,  shall  be  the  heir.  Succession 
in  the  United  States,  as  in  England,  follows  the  line  of  consan- 
guinity,20 except  where  the  surviving  husband  or  wife  is  allowed 
a  participation  as  a  successor,  and  a  person,  to  successfully  es- 
tablish his  claim  of  title,  must  bring  'himself  within  one  of 
the  classes  prescribed  by  the  statute,  as  well  as  show  that  no 
nearer  degrees  of  kindred  exist  which  by  statute  would  defeat 
the  claim  which  he  asserts. 

§  547.  General  Rules  of  Descent.  While  there  is  a  sad 
lack  of  harmony  in  the  statutes  of  descent  of  the  different 
States,  which  not  only  prevents  the  formulation  of  a  positive 
rule  but  also  any  intelligent  method  of  general  treatment,  it 
may  yet  be  said  that  five  well  denned  principles  relative  to  the 
succession  are  discernible.  The  descent  in  accordance  with 
these  principles  is  as  follows :  Real  estate  of  an  intestate  de- 
scends (1)  to  his  lineal  descendants,  except  where  a  surviving 
consort  is  allowed  to  participate;  (2)  to  his  father,  varied  in 
some  cases  by  a  participation  of  brothers  and  sisters;  (3)  to 
his  mother,  varied  as  before  by  collateral  participation ;  (4) 
to  his  collateral  relatives;  and  (5)  to  the  State  by  escheat.  These 
five  elementary  principles  are  covered  by  a  network  of  condi- 

18  Tyler    r.    Reynolds,    53    Iowa,  should    descend    to    the    collateral 

146.  relations,  being  of  the  blood  of  the 

i"9  There  were  seven  common  law  first  purchaser,  subject  to  the  three 
canons  of  descent  to  the  effect:  1,  preceding  rules;  6,  the  collateral 
that  inheritance  should  always  de-  heir  of  the  person  last  seized  must 
acend  lineally,  and  never  ascend  be  his  next  collateral  kinsman  of 
lineally;  2,  that  males  are  always  the  whole  blood;  7,  in  collateral 
preferred  to  females;  3,  of  two  or  inheritances,  the  male  stock  should 
more  males  in  equal  degree,  the  be  preferred  to  the  female,  unless 
eldest  only  should  inherit,  but  where  the  lands  had,  in  fact,  de- 
females  all  together;  4,  that  lineal  scended  from  a  female:  2  Black. 
de-cendants    in    infinitum,    of    any  Com.  208,  234. 

person    deceased,    should    represent  20  See  Table  of  Consanguinitjr,  § 

their    ancestor;     5,     on    failure    of  31   of  this  work, 
lineal    descendants,    the    inheritance 


656  ABSTRACTS    OF    TITLE. 

tions  and  provisos,  differing  more  or  less  in  every  State,  and  the 
application  of  these  conditions  governs  the  descent,  and  directs 
it  into  some  one  of  the  channels  above  enumerated.  In  all  cases 
not  provided  for  by  the  statute,  the  inheritance  descends  ac- 
cording to  the  course  of  the  common  law. 

§  548.  The  Right  of  Representation.  This  is  the  right 
of  the  lineal  descendants  to  take  the  portion  which  their  ances- 
tor would  have  taken,  and  is  called  inheritance  per  stirpes.  It 
is  a  statutory  right,  and  by  reason  of  the  diversity  of  the  statutes 
of  the  different  States,  no  positive  rule  can  be  stated.  Gener- 
ally, if  one  of  several  children  shall  have  died  before  the  an- 
cestor, the  heirs  of  such  child  will  take  the  portion  which  would 
have  descended  to  it  if  it  had  survived  the  ancestor,21  and  the 
same  rules  apply  for  determining  who  are  the  heirs  of  such 
child,  as  in  any  other  case  of  descent.  In  a  few  States,  where 
an  intestate  leaves  grandchildren  only,  they  all  take  per  capita, 
or  in  their  own  right,22  but  as  a  rule  of  more  general  observance, 
the  lineal  descendants  represent  only  their  ancestor.23 

§  549.  Preferences.  By  the  common  law  canons  of  de- 
scent, males  were  preferred  before  females,  the  eldest  male 
taking  in  preference  to  others  of  equal  degree,  and  females 
equally,  while  in  collateral  inheritance  the  male  stocks  were  al- 
ways preferred  to  the  female,  except  where,  in  fact,  the  lands 
had  descended  from  a  female.  This  has  all  been  abolished  by 
the  statutes  of  descent  which  provided  in  all  cases  for  equal  par- 
ticipation among  the  members  of  a  class,  and  the  right  of  primo- 
geniture, if  it  ever  existed  in  this  country,  is  now  unknown. 

§550.  Who  May  Take  By  Descent  —  Aliens.  There  is 
a  mass*  of  curious  and  obsolete  learning  in  the  books,  relative 
to  persons  capable  of  succeeding  to  an  inheritance,  for  the  law 

21  Dodge  v.  Beeler,  12  Kan.  524;  the  application  of  that  rule,  de- 
Crump  v.  Faucett,  70  N.  C.  345.  scendants   of   a   person   deceased   in 

22  Cox  V.  Cox,  44  Ind.  36S;  Eshle-  infinitum  represented  their  ancestor, 
man's  Appeal,  74  Pa.  St.  42.  Com-  and  only  when  the  representation 
pare  Harris'  Estate,  74  Pa.  St.  452.  failed    were    the    lineal    descendants 

2  3  This    is    somewhat    in    accord-       of  the   intestate's   next   of  kin  per- 
ance   with   the   fourth   canon   of  in-       mitted  to  come  in. 
heritance  at  common   law,   only   by 


DESCENTS,  657 

formerly  guarded  the  landed  estates  of  the  country  with  jealous 
care,  and  ruthlessly  excluded  from  a  succession  thereto  all  per- 
sons who  owed  fealty  to  another  sovereign.  Inheritance  was 
long  confined  to  citizens  of  the  United  States,  and  aliens  were 
expressly  declared  incapable  of  taking  lands  by  descent,  or 
other  mere  operation  of  law,  and  because  an  alien  could  have 
no  inheritable  blood  through  which  title  could  be  deduced,  a 
citizen  was  precluded  from  asserting  a  title  so  derived.  In 
case  of  the  death  of  an  alien  owning  lands,  or  of  a  citizen  without 
other  than  alien  heirs,  the  lands  of  such  -persons  escheated  to 
the  State.24  Private  laws  were  often  passed  to  enable  individ- 
uals to  receive  and  transmit  title,  and  the  effect  of  such  laws 
was  to  invest  the  person  mentioned  with  inheritable  blood  and 
to  enable  him  to  alien  or  devise  his  property  and  to  transmit  by 
descent  in  all  respects  the  same  as  a  citizen  of  native  birth,25 
but  not  to  remove  the  barrier  against  alien  heirs.  All  of  this 
grew  out  of  the  timidity  of  the  islander,  and  was  a  part  of  our 
inheritance  of  the  English  common  law. 

At  present  a  few  relics  of  the  narrow,  insular  ideas  of  the 
common  law  may  still  be  found,  but  in  many  States  where  the 
doctrine  formerly  prevailed,  it  has  been  swept  away  by  the  lib- 
eral policy  of  later  years  and  in  other  States  it  never  had  a 
recognition.  In  a  few  States,  while  the  right  of  inheritance 
is  not  denied  to  an  alien,  it  is  yet  restricted  by  limitations  of 
time,  value  and  quantity,  but,  generally,  for  all  practical  pur- 
poses, so  far  as  respects  the  acquisition  and  descent  of  land, 
the  alien  and  the  citizen  stand  upon  an  equal  footing.26 

In  the  examination  of  titles  an  inquiry  into  the  questions 
just  noted  is  sometimes  material  and  necessary,  and  if,  from  a 
view  of  the  facts  shown,  or  of  answers  to  inquiries  in  pais,  it 
appears  that  title  is  deduced  through  an  alien,  at  a  time  when 

24  Craig    v.    Radford,     3    Wheat.  dower  and  curtesy:     Miek  v.  Mick, 

303;    Doe  v.  Governeur,   11    Wheat.  10  Wend.  379. 

352;    Jackson    v.    Green,    7    Wend.  25  Parish  v.  Ward,  28  Barb.  328. 

333;  Levy  v.  Levy,  6  Pet.  102.    This.  26  See   McConville   V.    Howell.    17 

extended   as  well  to  the  estates   of  Fed.  Rep.  104. 

42 


658  ABSTRACTS    OF    TITLE. 

aliens  were  incapable  of  transmitting  by  descent,27  evidence  of 
other  matters,  sufficient  in  law  to  support  the  title  of  the  pres- 
ent claimant,  should  be  required  before  accepting  same.  The 
laws  of  the  States  removing  the  disabilities  of  alienage  and 
granting  or  withholding  the  privileges  of  citizenship,  are  not 
usually  retroactive,  nor  do  they  possess  any  extraterritorial  ef- 
fect, and  the  domicile  of  the  ancestor  at  the  time  of  his  death 
does  not  affect  the  application  of  the  lex  rei  sitae,  for  no  State 
can  prescribe  qualifications  of  citizenship,  to  be  exercised  in 
another  State,  in  opposition  to  its  local  laws  and  policy,  and 
even  the  clause  of  the  Federal  constitution  declaring  that  the 
citizens  of  each  State  are  entitled  to  all  the  privileges  and  im- 
munities of  citizens  in  the  several  States,  is  not  sufficient  to 
overcome  the  rule.28 

§  551.  Continued  —  Adoptive  Heirs.  The  rights  grow- 
ing out  of  adoption  present  a  series  of  somewhat  similar  views. 
This  act,  being  in  derogation  of  the  common  law  and  of  natural 
right,  confers  upon  the  heir  by  adoption  rights  which  can  only 
by  asserted  strictly  within  the  law,  and  particularly  is  this  the 
case  when  title  is  claimed  in  States  other  than  that  under  whose 
laws  the  heirship  was  effected.  The  rights  of  inheritance  ac- 
quired by  an  adopted  heir  in  one  State  can  be  recognized  and 
upheld  in  another  State  only  so  far  as  they  are  not  inconsistent 
with  the  law  of  descent  of  such  latter  State,  and  his  inheritable 
capacity  must  be  measured  by  the  laws  of  the  State  where  the 
land  is  situate,  and  not  by  that  of  his  late  ancestor's  domicile, 
or  the  State  conferring  inheritable  blood.29 

§552.  Ancestral  Estates  —  Half  Blood.  A  marked  pro- 
vision may  be  observed  in  the  statutes  of  descent  of  many  States 
in  relation  to  ancestral  estates  and  the  exclusion  of  all  persons 

27  Sporadic  attempts  to  revive  the  28  Gerard's  Titles,  89;  Corfield  V. 

bar  against  alien   heirs   and   to   re-  Corgell,  4  Wash.   (C.  Ct.)  371;  Kee- 

strict  alien  ownership  will  be  found  gan   v.   Geraghty,   101   111.   26. 

in   the   legislation  ■  of   many   States.  29  Consult     Ross     r.     Ross,     129 

The  effect  of  such   legislation  must  Mass.    243;    Sewal    v.    Roberts.    115 

be    determined    by    local    laws    and  Mass.  262;  Keegan  v.  Geraghty,  101 

statutory  construction.  111.  26. 


DESCENTS.  659 

who  do  not  partake  of  the  blood  of  such  ancestor.  The  clause 
in  question  provides  in  substance  that  in  case  an  inheritance 
comes  to  an  intestate  by  descent,  devise  or  gift  of  one  of  his 
ancestors,  all  those  not  of  the  blood  of  such  ancestor  shall  be 
excluded  from  such  inheritance,  and  the  rule  observed  by  the 
courts  is  general,  that  only  persons  of  ancestral  blood  can  in- 
herit ancestral  estates.30  The  current  of  later  decisions,  how- 
ever, is  uniform  in  declaring  that  the  rule  has  reference  to  the 
immediate  ancestor  from  whom  the  intestate  received  the  in- 
heritance, and  not  from  a  remote  ancestor  who  was  the  original 
source  of  title.31 

§  553.  Surviving  Consorts.  Husbands  and  wives  are  in 
no  sense  of  the  word  next  of  kin  to  the  other,32  but  inasmuch 
as  heirship  is  peculiarly  a  creation  of  the  legislature,  it  has  the 
power  to  make  a  surviving  husband  or  wife,  as  well  as  a  child, 
an  heir,  and  this  has  been  directly  or  indirectly  accomplished 
in  a  number  of  the  States.33  But  further,  the  right  of  dower 
has  been  radically  changed  in  a  few  States,  so  that  instead  of 
the  use,  during  life,  of  a  portion  of  the  husband's  estate,  the 
fee  to  a  specific  quantity  vests  absolutely  in  the  widow  upon 
his  death,  and  though  it  will  require  no  small  amount  of  astute 
reasoning  to  discover  wherein  such  procedure  does  not  constitute 
a  descent,  yet  the  courts  of  such  States,  in  view  of  the  fact 
that  the  statute  declares  that  she  shall  be  "  entitled,"  etc.,  have 
decided  that  the  widow  does  not  take  by  descent,  as  an  heir, 
but  by  virtue  of  her  marriage  relation,  as  a  widow.34  Further 
provision  for  a  surviving  consort  is  made  in  some  States  where 

30  Campbell  v.  Ware,  27  Ark.  65;  The  term  "next  of  kin  "  refers  only 
Wheeler  v.  Clutterbuek,  52  N.  Y.  to  relatives  by  blood.  See  Slosson 
67;  Perkins  v.  Simmonds,  28  Wis.  v.  Lynch,  43  Barb.  (N.  Y.)  147; 
90.  Haraden    v.    Larrabee,     113     Mass. 

31  Buckingham  v.  Jacques,  37  430;  Dodge's  appeal,  106  Pa.  St. 
Con.     402;     Curren    V.    Taylor,     19  216. 

Ohio,  36;  Cramer's  Appeal,  43  Wis.  33  May  V.  Fletcher,  40  Ind.   577; 

167;    Ryan    v.    Andrews,    21    Mich.  Dodger.  Beeler,  12  Kan.  524;  Ring- 

22!);   Wheeler  V.  Clutterbuek,  52  N.  house  r.  Keever,  4!)  111.  470. 

Y.  67.  34  Brannon   V.   May,    43    Ind.    92; 

32  Towiiseiid    r.    Radcliffe,   44    111.  May  v.  Fletcher,  40  Ind.  577. 
446;  Tillman  v.  Davis,  95  N.  Y.  17. 


660  ABSTRACTS    OF    TITLE. 

the  deceased  spouse  leaves  no  children,  or  no  kindred  of  any- 
kind,  and  in  such  event  the  survivor  takes  strictly  as  an  heir.35 

§  554.  Corparceners.  Persons  to  whom  estate  of  in 
heritance  descends  jointly,  and  by  whom  it  is  held  as  an  entire 
estate,  are  called  coparceners.36  Formerly  in  England  the 
term  included  all  persons,  and  such  is  its  legal  signification  in 
America,  but  its  present  use  in  England  is  confined  to  females.37 
The  distinction  between  coparcenary  and  tenancy  in  common, 
is  virtually  abolished  in  the  United  States,  and  the  general  rules 
relative  to  tenants  in  common  have  the  same  application  whether 
the  common  property  be  derived  by  descent  or  by  purchase. 

§  555.  What  Descends.  Everything  comprised  in  the 
term  "  lands,"  or  "  lands,  tenements  and  hereditaments,"  de- 
scends according  to  law  to  the  heirs,  and  these  terms  include 
every  estate,  interest  and  right,  legal  and  equitable,  whether 
in  possession  or  expectancy,  vested  or  contingent,  except  such 
matters  as  may  be  determined  or  extinguished  by  the  death  of 
the  intestate,  leases  for  years,  and  estates  for  the  life  of  an- 
other.38 

§  556.  How  Affected  by  Ancestral  Covenants.  Heirs 
are  not  bound  by  the  covenants  of  their  ancestors,  further  than 
the  real  estate  descended  to  them  and  the  amount  of  their  dis- 
tributive shares  of  their  ancestor's  personal  estate,39  but  where 
the  ancestor  conveyed  with  warranty,  land  to  which  he  had  no 
title,  or  in  which  he  had  only  an  inferior  or  limited  estate, 
his  heirs  must  make  the  warranty  good  if  they  have  assets  by 
descent  equal  to  the  value  of  the  land.40 

§  557.  Liability  for  Ancestral  Debts.  An  heir  is  under 
no  legal  liability  to  discharge  the  debts  of  his  ancestor  from 
whom  he  takes  real  estate,  except  where  the  personal  estate  of 

35  See,  York  v.  York.  38  111.  522.  subject  of  inheritance,  but  the  above 

36  1  Bou.  Law  Diet.  363;  2  Black.  is  the  substance  of  the  statute  as 
Com.  187.  generally    enacted. 

37  4  Kent  Com.  462;  2  Bou.  Inst.  39  Holder  v.  Mount,  2  Marsh, 
n.   1781.  (Ky.)    189. 

38  The  statute  usually  defines  the  40  Miller  v.  Bledsoe.  61  Mo.  96. 


DESCENTS.  661 

such  ancestor  is  insufficient  to  pay  same,41  and  creditors,  in  the 
first  instance,  must  resort  to  the  personal  representatives  before 
seeking  satisfaction  of  the  heirs.42  After  having  accepted  the 
succession,  they  become  personally  liable  for  the  debts  of  the 
ancestor,43  but  only  to  the  extent  of  what  descends  to  them  from 
such  ancestor.44 

§  558.  Creditors'  Liens.  Even  though  a  title  by  descent 
may  be  perfect  in  the  person  asserting  same,  it  is  yet  liable  to 
be  defeated  by  a  sale  made  in  satisfaction  of  the  ancestor's  debts, 
and  no  security  can  be  predicated  for  it  until  the  bar  of  the 
statute  has  intervened.  In  case  of  unprobated  estates  the  full 
jDeriod  of  limitation  must  have  expired  before  a  purchaser  can 
feel  reasonably  certain  as  to  the  stability  of  his  title,  and  where 
there  is  no  statute  —  as  is  generally  the  case  —  interposing  any 
limitation  of  time  within  which  the  lien  of  creditors  on  the 
lands  of  a  decedent  must  be  enforced,  difficult  and  embarras- 
sing questions  are  presented,  for  which  no  absolute  rule  of  solu- 
tion can  be  given.  The  questions  that  naturally  arise  are ;  will 
the  delay  and  laches  of  the  creditor  destroy  his  lien  and  right  to 
pursue  the  land  in  the  hands  of  the  grantee  of  the  heir,  holding 
under  a  conveyance  duly  recorded,  and  if  so,  what  period  of 
time  must  elapse  ?  Certainly  the  lien  can  not  be  perpetual,  and 
it  would  seem,  by  analogy  to  the  liens  of  judgments  and  the 
limitation  for  entry  upon  land,  that  the  statutory  period  pro- 
vided in  those  cases  should  bar  such  lien,  and  this  has  been  the 
view  taken  by  the  courts  in  several  instances  when  such  ques- 

41  McLean  v.  MeBean,  74  111.  Ann.  743.  The  debts  chargeable 
134;  Woodfin  V.  Anderson,  2  Tenn.  upon  lands  descended  are  those  con- 
Ch.  331.  Though  customary,  it  is  tracted  by  the  decedent  owner,  not 
not  accurate  to  say  that  lands  de-  those  incurred  by  his  representa- 
scending  to  heirs  are  charged  with  tives  in  the  course  of  administra- 
te debts  of  the  ancestor.  The  tion:  Allen  V.  Poole,  54  Miss.  323; 
lands  are  liable  only  to  be  charged  Porterfield  V.  Taliaferro,  9  Lea 
with   the   payment  of   debts  upon  a  (Tenn.),  242. 

deficiency   of    personal    assets;    and  44  Payson  V.  Hadduck,  8  Bias.   (C. 

this    ri<rht    may    be    lost    by    delay:  Ct.)     293;    Williams    V.    Ewing,    31 

Bishop  v.  O'Connor,  69  111.  431.  Ark.  229;   Branger  V.  Lucy,  82  111. 

42  Mix  r.  French,  10  Heisk.  91;  Cutright  v.  Stanford,  81  111. 
(Tenn.)    377.  240. 

43  Succession   of  Bougere,  28  La. 


662  ABSTRACTS    OF    TITTE. 

tions  have  been  presented.45  The  question,  however,  is  still 
one  of  great  doubt  and  uncertainty.  The  conclusion  above 
stated  seems  in  every  way  just  and  equitable  and  in  consonance 
with  established  legal  rules,  yet  it  appears  to  have  been  adopted 
in  but  few  States.  The  preponderance  of  authority  leaves  the 
matter  open  and  indefinite.  It  is  agreed  that  an  order  to  sell 
lands  should  be  procured  within  a  reasonable  time,  but  what 
is  a  reasonable  time  is  generally  left  to  the  discretion  of  the 
courts  to  be  determined  upon  consideration  of  all  the  circum- 
stances of  each  particular  case.46 

In  case  of  probated  estates,  a  shorter  period  is  required. 
The  limit  of  the  time  when  application  can  be  made  by  cred- 
itors to  sell  the  lands  of  the  decedent,  is  variously  fixed  at  from 
one  to  four  years  from  the  granting  of  letters  of  administra- 
tion. During  this  period  the  land  remains  subject  to  sale,  in 
case  of  a  deficiency  of  personal  assets,  not  only  in  the  hands  of 
the  heirs,  but  of  every  subsequent  purchaser,47  and  the  title 
made  at  such  sale  will  be  paramount  to  all  titles  made  by  or 
through  the  heirs.48  There  is  no  prohibition  to  the  aliena- 
tion of  the  land  before  the  expiration  of  the  prescribed  period, 
for  the  heir  may  sell  and  convey  at  any  time  after  the  death  of 
the  ancestor,  but  if  he  should  convey  before  the  expiration  of 
that  period,  the  lands  pass  subject  to  the  power  of  the  probate 

45  McCoy  v.  Morrow,  18  111.  519;  Hill  r.  Treat,  67  Me.  501;  McCoy 
Fitzgerald    v.    Clancy,   49    111.    465;        v.  Morrow,  IS  111.  519. 

Furlong  v.  Fviley,  103  111.  638.     The  48  Meyer  v.  McDougal,  47  111.  278. 

policy    of    the    law    is,    repose    and  The   same   is    equally   true   of   dev- 

security  of  titles  and  estates  against  isees:     Hyde  v.  Tanner,  1  Barb.  79. 

dormant    claims,    and     further,    to  But    where    the    creditor    proceeds 

afford  notice  of  liens  against  lands  directly    against    the    heir,    if    the 

through  the   public  records,  and  to  real   estate   has   been    sold   by   such 

disfavor  those  liens  of  which  it  has  heir   in   good   faith,   it  would    seem 

provided  no  public  notice.  that    it    can    not    be    sold    under    a 

46  Hatch  r.  Kelly,  63  N.  H.  29;  judgment  against,  him;  but  the 
Gunby  v.  Brown,  86  Mo.  253;  Mays  creditor  must  satisfy  his  judgment 
V.  Rogers,  37  Ark.  155;  Liddel  v.  out  of  other  property  of  the  heir  to 
McVickar,  11  N.  J.  L.  44;  Fergusen  the  extent  of  the  value  of  the  land 
V.  Scott,  49  Miss.  500.  so   aliened:     Vansyckle  V.   Richard- 

47  Hyde   v.   Tanner,    1    Barb.   79;  son,   13  111.   171. 


DESCENTS.  6  Go 

court  to  order  a  sale  for  the  payment  of  debts,  which  is  a  kind 
of  statutory  lien  running  with  the  land.  After  the  expiration 
of  the  statutory  period,  the  power  of  the  probate  court  ceases; 
the  land  is  discharged  from  the  lien;  and  the  heir  may  sell, 
and  Jfona  fide  purchasers  will  take  the  estate,  freed  and  dis- 
charged from  the  debts.49 

The  foregoing  is  based  upon  decisions  made  in  pursuance  of 
local  statutes,  but  will  probably  serve  as  a  general  exposition 
of  the  law  in  all  States  so  far  as  respects  creditors  who  fail  to 
.present  or  prove  their  claims. 

§  559.  Equitable  Conrersion.  The  succession  of  the 
heir  may  also  be  defeated  by  what  is  known  as  equitable  con- 
version, as  where  the  ancestor  had  made  a  valid  contract  of  sale 
but  died  before  its  consummation  by  deed.  In  such  a  case 
equity  will  intervene,  on  the  familiar  principles  heretofore 
shown.50  In  the  event  just  noted,  the  purchase  money  accrues 
to  the  executor  or  administrator,  and  not  to  the  heirs,51  while 
on  the  contrary,  if  the  ancestor  had  purchased  land  but  re- 
ceived no  conveyance,  the  title  subsequently  acquired  would  in- 
ure to  the  heirs,  even  though  the  administrator  paid  the  pur- 
chase money. 

§  560.  Proof  of  Heirship.  Title  by  inheritance  or  suc- 
cession accrues  only  to  the  issue  of  lawful  wedlock,52  and  can 
be  asserted  only  by  the  person  or  persons  who  can  bring  them- 

49Collamore   v.   Wilder,    19   Kan.  55  111.  204;  Eaton  v.  Bryan,  18  111. 

67;   Sevier   v.  Gordon,   29  La.  Ann.  525. 

440;   Hyde   v.  Tanner,   1   Barb.  79;  52  It    is    a    rule    of    construction 

Nowell    v.    Bragdon,    14    Me.    320;  that,   prima  facie   the   term   "  chil- 

Aiken    r.    Morse,     104    Mass.    277.  dren "   means   lawful    children,   and 

This  is  a  matter  of  statutory  regu-  the    statute    of    descents,   by   which 

lation ;  consult  local  statutes.  the  property  of  an  intestate  is  made 

50  See  Chap.  XVI11,  Agreements  to  descend  to  and  among  the  chil- 
for  Conveyances.  dren  and  their  descendants,  ha%  ref- 

51  The  heirs  in  such  a  case  would  erence  to  lawful  children  only,  and 
take  the  legal  title  by  descent,  but  does  not  do  away  with  the  com- 
only  as  trustees:  Johnson  V.  Cor-  mon  law  rule,  which  prevents  ille- 
bett,  11  Paige,  265;  Moore  v.  Bur-  gitimate  children  from  inheriting 
rows,  34  Barb.  173;  Smith  v.  Smith,  anything:     Blacklaws   v.   Milne.   82 

111.    505. 


664  ABSTBACTS    OF    TITLE. 

selves  within  the  line  of  succession  provided  by  the  statute.  To 
successfully  assert  the  title,  therefore,  it  is  necessary  for  the 
heir  to  prove :  ( 1 )  the  death  of  the  ancestor,  and  lawful  seizin 
in  him  of  the  subject-matter  of  the  title  at  the  time  of  such  ■ 
decease;  (2)  the  marriage  of  his  parents;  and  (3)  proof  of 
his  legitimacy  or  a  lawful  adoption.  These  three  points  satis- 
factorily established,  the  law  will  invest  him  with  title  to  such 
portion  of  the  ancestor's  estates  as,  under  the  statute,  he  is  en- 
titled to  take.  To  prove  heirship  in  a  collateral  line,  a  party 
must  show  the  descent  of  himself  and  the  person  last  seized, 
from  some  common  ancestor,  and  the  extinction  of  all  those  lines 
of  descent  which  would  claim  before  him.53 

In  contests  concerning  the  succession,  these  matters  are  proved 
in  a  variety  of  ways,  but  mainly  upon  the  established  prece- 
dents of  the  common  law,  which  will  be  discussed  in  succeeding 
paragraphs.  The  difficulties  which  may  attend  the  judicial  de- 
termination of  questions  of  heirship,  including  the  ascertaining 
who  are  entitled  to  succeed  to  an  intestate's  real  estate,  do  not 
seem  to  be  provided  for  by  statute  in  a  majority  of  the  States, 
though  an  attempt  has  been  made  in  some  to  provide  means, 
by  a  proceeding  in  probate,  for  obtaining  presumptive  evidence 
of  the  facts  as  to  the  persons  who  constitute  the  heirs  at  law  of 
a  deceased  person.54  Ordinarily  the  meager  proof  offered  by 
the  administrator,  upon  the  application  for  letters  of  adminis- 
tration, is  the  only  record  proof  of  heirship  available  in  the  com- 
pilation of  an  abstract,  and  though  the  decree  or  adjudication 
may  find  the  persons  mentioned  in  his  petition  the  only  heirs 
at  law  of  the  decedent,  it  is  not  conclusive  on  that  point,  and  is 
done  rather  for  the  purpose  of  fixing  the  right  of  the  person  ap- 
pointed to  administer,  and  for  his  guidance  in  the  distribution 

53  Emmerson  V.  White,  29  N.  H.  interest  of  the  petitioners  and  other 
482.  heirs ;     and    praying    for    a    decree 

54  See,    N.    Y.    Civ.    Co.    Proc.    §  establishing   the    rights    of   inherit- 
2654.     This  is  done  by  petition  de-  ance;   but  this  proceeding  does  not 
scribing    the     real     estate ;     setting  affect  the  right  or  interest  of  a  per- 
forth  the  facts  upon  which  the  ju-  ,  son  not  a  party  thereto, 
risdiction  of  the  court  depends;  the 


DESCENTS.  665 

of  the  personalty,  than  to  establish  the  claims  of  the  heirs  to 
the  realty  through  descent. 

§  561.  Proof  of  Adoption.  Where  the  heir  is  such  by 
adoption  and  not  by  blood,  it  may  be  well,  in  proper  cases,  to 
require  further  proof  of  heirship  than  is  afforded  by  the  finding 
of  the  probate  court.  This  would  be  accomplished  by  showing 
the  decree  of  adoption.  The  right  of  adoption  is  not  of  com- 
mon law  origin  but  is  borrowed  from  the  civil  law,  and,  in 
every  instance,  is  purely  statutory.  It  is  necessary,  therefore, 
that  the  facts  essential  to  the  exercise  of  this  special  jurisdic- 
tion should  be  shown  by  the  record,  and  to  give  a  decree  of 
adoption  any  force  or  effect  the  court  pronouncing  same  must, 
as  a  rule,  have  acquired  jurisdiction  (1)  over  the  person  seeking 
to  adopt  the  child;  (2)  over  the  child;  and  (3)  over  the  par- 
ents of  such  child.55  In  other  words,  the  statute  must  in  all 
cases  be  complied  with ;  56  its  terms  and  conditions  must  be  ful- 
filled ;  and  if  the  specified  requisites  57  are  not  performed,  then 
the  act  is  incomplete  and  the  child  can  not  inherit  from  the 
parent  by  adoption.58  Where  the  statute  provides  specifically 
the  means  whereby  one  sustaining  no  blood  relation  to  an  intes- 
tate may  inherit  his  property,  the  rights  of  inheritance  must 
be  acquired  in  that  manner,  and  can  be  acquired  in  no  other 
way.59 

§  562.  Proof  of  Death.  To  establish  the  claim  of  the 
heir  it  is  necessary  to  prove  the  death  of  the  ancestor,  and,  in 
the  absence  of  proof,  all  the  presumptions  are  that  an  indi- 
vidual is  still  living.60     For  certain  purposes  an  absence  of 

55  Ferguson  v.  Jones,  17  Oreg.  58  Luppie  V.  Winans,  37  N.  J. 
204.                                                                  Eq.   245;    Foster  v.  Waterman,   124 

56  Tyler    v.    Reynolds,    53    Iowa,      Mass.  592. 

146;    Keegan   v.  Geraghty,   101    111.  59  Shearer    r.    Weaver,    56    Iowa, 

26.  578. 

57  Usually  the  consent  of  the  par-  60  Martinez  v.  Vives  Succession, 
ents  or  surviving  parent  of  the  child  32  La.  Ann.  305;  Mosheimer  v. 
is  required,  and  if  the  child  is  over  Ussleman,  36  111.  232;  Whiting  v. 
the  age  of  consent,  its  own  consent  Nicoll,  46  111.  230.  Great  lapse  of 
as  well.  Where  these  requisites  are  time  will,  of  course,  rebut  the  pre- 
speeified  they  are  vital.  sumption,    and    in   the    interval    of, 


G66 


ABSTRACTS    OF    TITLE. 


seven  years  without  tidings  has  been  held  to  create  a  presump- 
tion of  death,61  but  this  presumption  is  repelled  by  very  slight 
facts  and  circumstances  62  and  courts  have  refused  to  entertain 
the  presumption  after  an  interval  of  absence  and  silence  of 
twenty  years,  where  the  circumstances  rendered  it  improbable 
that  a  party,  if  alive,  would  have  communicated  with  her 
friends.63  "  Scarcely  any  length  of  time,"  observes  a  Canadian 
writer,64  "  will  be  sufficient  to  compel  an  unwilling  purchaser  to 
take  a  title  depending  on  such  a  presumption  of  death,  unless 
made  with  reference  to  the  age  of  the  party  said  to  be  deceased ; 
and  if  the  party  whose  death  is  asserted  was,  when  last  heard  of, 
very  young,  the  period  must  be  that  beyond  which  human  life 
does  not  commonly  extend."  Instances  similar  to  that  cited 
by  the  writer  just  quoted  must,  however,  be  of  very  rare  oc- 
currence in  the  United  States  as  other  agencies,  arising  from 
taxation,  adverse  possession,  statute  of  limitations,  etc.,  might, 


say  one  hundred  years,  a  party 
must  be  presumed  to  have  died  in 
the  ordinary  course  of  nature.  The 
civil  law,  however,  presumes  a  per- 
son living  at  one  hundred  years  of 
age,  and  the  common  law  does  not 
stop  much  short  of  this.  See  Wat- 
son  v.  Tindal,  24  Ga.  494. 

61  Whiting  v.  Nicoll,  46  111.  230; 
Dart,  on  Vend.  315;  Hubback  on 
Sue.  (Eng.)  179;  Newman  v.  Jen- 
kins, 10  Pick.  155;  Wambough  17. 
Schenk,  1  Pa.  229;  Davie  v.  Briggs, 
97  U.  S.  628;  Adams  V.  Jones,  39 
Ga.  479. 

62  Smith  v.  Smith,  49  Ala.  158; 
Brown  v.  Jewett,  18  N.  H.  230.  A 
failure  to  hear  from  an  absent  per- 
son for  seven  years,  who  was  known 
to  have  had  a  fixed  place  of  resi- 
dence abroad,  would  not  be  sufficient 
to  raise  a  presumption  of  his  death, 
unless  due  inquiry  had  been  made 
at  such  place  without  getting  tid- 
ings from  him.  Wentworth  v. 
Wentworth,  71  Me.  72. 


63  Taylor  on  Titles,  65;  Bowden 
V.  Henderson,  2  Sm.  &  G.  (Eng.) 
560.  On  the  other  hand  one  may 
be  presumed  to  be  dead  before  the 
expiration  of  the  lapse  of  time 
requisite  to  establish  the  presump- 
tion in  the  case  of  absence  without 
being  heard  from,  if  there  is  suffi- 
cient evidence,  though  circumstan- 
tial only,  to  fairly  induce  a  belief 
in  the  fact  that  death  has  occurred: 
Boyd  v.  Ins.  Co.,  34  La.  Ann.  848. 
The  presumption  varies  somewhat 
according  to  the  subject  to  which 
it  is  applied;  this  is  strikingly  illus- 
trated in  the  case  of  second  mar- 
riages, where  more  liberal  intend- 
ments are  permitted,  than  in  case 
of  succession  and  descent.  See, 
Cooper  v.  Cooper,  86  Ind.  75;  Wil- 
liams Estate,  13  Phil.   (Pa.)   325. 

64  Taylor  on  Titles,  65;  citing 
Lee  on  Abstracts,  467.  And  see, 
O'Gara  v.  Eisenlohr,  38  N.  Y.  296; 
Watson  v.  Tindal,  24  Ga.  274 ;  Sprig 
V.  Moale,  28  Md.  497. 


DESCENTS.  G67' 

under  proper  circumstances,  validate  and  make  good  a  title  de- 
rived by  succession  even  though  defective  in  itself  and  founded 
upon  insufficient  evidence  of  ancestral  death. 

The  ordinary  evidence  of  death  in  England  consists  of  en- 
tries in  parochial  registers,  or  certified  copies  of  same,  and 
declarations  as  to  the  identity  of  the  parties ;  these  registers, 
however,  do  not  seem  to  be  evidence  of  the  time  of  death,  and 
disclose  the  fact  only  inferentially,  as  by  showing  that  it  must 
have  occurred  before  the  date  of  burial,  of  which  fact  they  seem 
to  be  evidence.65  Such  evidence  has,  however,  been  received' 
in  the  United  States,06  particularly  in  proving  pedigrees,  but  is 
of  doubtful  character,  unless  aided  by  statute.  To  remedy  the 
defects,  inaccuracies,  omissions,  etc.,  of  parish  registers,  as  well 
as  to  provide  some  tangible  evidence  of  births,  marriages  and 
deaths,  for  the  large  class  who  would  not  be  affected  by  such 
registers  in  a  country  where  a  complete  disassociation  of  church 
and  State  is  observed,  many  of  the  States  have  provided  a 
special  registration  of  such  facts  in  the  permanent  archives  of 
the  counties. 

Where  the  question  arises  in  the  examination  of  title,  and  no 
other  or  better  evidence  can  be  adduced,  it  is  customary  to  pro- 
cure the  affidavits  of  eye  witnesses  who  are  conversant  with  the 
fact.  Thus,  the  affidavit  of  the  attending  physician,  or  the  un- 
dertaker, or  a  person  who  knew  deceased  in  life  and  saw  his 
remains  in  the  coffin,  are  often  resorted  to  in  cases  of  diffi- 
culty and  to  sustain  conveyances  by  alleged  heirs. 

Granting  of  letters  of  administration  is  prima  facie  evi- 
dence of  the  death  of  the  party  upon  whose  estate  they  are 
issued,  but  the  presumption  thus  raised  is  of  the  lowest  class; 

65  Dart  on  V.  &  P.  *  176.  burial  in  a  church   in  Philadelphia 

66  Hyam  r.  Edwards,  1  Dall.  (U.  were  held  to  be  admissible  in  a  land 
S.)  2;  Duplessis  V.  Kennedy,  6  La.  controversy  in  Kentucky,  tried  in 
231  ;  Jackson  v.  Boneham,  15  Johns.  one  of  the  courts  of  the  United 
(N.  Y. )   226.     The  question  was  de-  States.     It     was     there     held,     cx- 

icided  in  favor  of  such  entries  in  an  pressly.  that  they  were  competent 
early  case  in  the  Supreme  Court  of  testimony.  Lewis  v.  Marshall,  5 
the  United  States,  where  entries  of       Pet.   (U.  S.)  470. 


608  ABSTRACTS    OF    TITLE. 

is  weak  and  inconclusive,  and  may  be  rebutted  by  slight  evi- 
dence.67   ' 

Death,  like  any  other  fact,  may  be  proved  by  circumstantial 
evidence ;  hence  a  sudden  disappearance,  particularly  if  coupled 
with  an  unsound  mental  or  physical  condition,68  or  proof  of  a 
wreck  of  a  vessel  in  which  the  ancestor  was  known  to  have 
taken  passage,  or  any  other  circumstances  from  which  the  death 
of  the  person  may  be  reasonably  inferred,  are  all  competent  to 
show  the  fact  in  connection  with  long  and  unexplained  absence. 
Where  several  lives  are  lost  in  the  same  disaster,  there  is  no  pre- 
sumption from  age  or  sex  that  either  survived  the  other,  nor 
is  it  presumed  that  all  died  at  the  same  moment ;  but  the  fact 
of  survivorship,  like  every  other  fact,  must  be  proved  by  the 
party  asserting  it.69  In  the  absence  of  evidence  from  which 
the  contrary  may  be  inferred,  all  may  be  considered  to  have 
perished  at  the  same  moment ;  not  because  that  fact  is  presumed, 
but,  because  from  a  failure  of  those  asserting  it  to  prove  to  the 
contrary,  property  rights  must  necessarily  be  settled  on  that 
theory.70  All  cases  involving  the  question  of  survivorship  must 
be  determined  upon  their  own  peculiar  facts  and  circumstances 

67  Tisdale  V.  Ins.  Co.,  26  Iowa,  law  the  presumptions  were  never  in 
170.  favor  of  contemporaneous  death.     If 

68  John  Hancock,  etc.,  Co.  v.  a  father  and  his  son  perished  in 
Moore,  34  Mich.  41.  the   same   battle   or   shipwreck,  the 

69  Newell  V.  Nichols,  75  N.  Y.  son  above  the  age  of  puberty  was 
78;  Coye  V.  Leach,  8  Met.  (Mass.)  presumed  to  have  survived  his 
371.  father;  under  that  age  to  have  pre- 

70  This  is  the  generally  accepted  deceased  him.  This  was  upon  the 
doctrine  in  all  the  States  which  de-  idea  that  in  the  former  case  the 
rive  their  systems  of  jurisprudence  son  was  usually  stronger,  in  the 
from  the  common  law;  under  the  latter  case  weaker,  than  his  father, 
civil  law,  however,  there  is  no  room  So  if  persons  perishing  in  the  same 
for  dispute  on  the  subject,  it  being  disaster  were  all  under  fifteen,  the 
the  invariable  rule  of  the  civilians  presumption  of  survivorship  was 
that  when  a  parent  and  his  grown  with  the  elder;  if  all  were  over 
child  perish  together,  the  manner  sixty,  with  the  younger.  Similarly 
thereof  being  unknown,  the  child  the  wife  (being  of  the  weaker  sex), 
shall  be  supposed  to  survive  the  was  presumed  to  have  yielded  first 
parent.      According    to   the   Roman  to  the  common  peril. 


DESCENTS. 


669 


whenever  the  evidence  is  sufficient  to  support  a  finding  of  sur- 
vivorship;  in  the  absence  of  such  evidence  the  question  of  sur- 
vivorship must  necessarily  he  regarded  as  unascertainable. 

§  563.  Continued  —  Official  Registration.  In  States 
where  a  system  of  official  registration  prevails,  all  persons  or 
societies  solemnizing  marriages;  all  physicians,  or  other  pro- 
fessional persons,  under  whose  care  a  birth  shall  occur,  or  in 
case  of  no  professional  attendance,  then  the  mother ;  and  all 
persons  who  shall  he  in  attendance  professionally  at  the  time 
of  the  death  of  any  person,  are  required  to  transmit  to  the  re- 
cording officer  of  the  county  a  statement  under  their  hands  of 
the  facts  attending  such  marriage,  birth  or  death,  and  a  reg- 
ister of  the  facts  so  returned  is  kept  by  such  officer.  A  tran- 
script of  such  registry  is  further  required  to  be  transmitted 
semi-annually  to  the  Secretary  of  State  to  be  by  him  preserved 
at  the  seat  of  government.71  This  record, when  made  and  kept 
pursuant  to  law,  is  received  as  presumptive  evidence  of  the 
marriage,  birth  or  death  so  recorded.72  When  no  probate  pro- 
ceedings have  been  had,  this  method  of  proof,  if  available, 
should  be  resorted  to  for  the  purpose  of  showing  the  death  of 
the  ancestor,  as  well  as  the  birth  and  legitimacy  of  the  heir 
claimant.  The  facts  of  a  death  certificate  may  be  stated  in  this 
manner : 


Proof   of  Death 

°f  . 
George  Williams. 

Doc.   200 J 10. 


Certificate  by  Wm.  M.  Farr,  M.  D. 
Dated  March  10,  18 S3. 
'Recorded  March  11,  1883. 
Death  Register  "A,"  page  20.88. 


Certifies  that  George   Williams,  white,  male,  aged  fifty-five 


71  This  matter  is  local  and  statu- 
tory. The  statement  above  made 
is  compiled  from  the  code  of  the 
State  of  Wisconsin.  As  affecting 
real  estate  by  descent,  it  is  a  most 
wise  and  salutary  measure  and  one 
that  should  find  immediate  adoption 
in  all  States  in  which  it  docs  not 
now    prevail.      In   some    States    the 


municipal  authorities  are  required 
to  keep  a  register  of  "vital  stulis- 
tics,"  which,  in  some  measure,  will 
serve  as  an  aid  in  securing  missing 
links  in  a  chain  of  pedigree. 

72  State  r.  Wallace,  9  X.  It.  515; 
Milford  v.  Worcester,  7  Mass.  48; 
State  v.  Potter,  52  Vt.  33;  Niles  V. 
Sprague,  13  Iowa,  108. 


070  ABSTRACTS    OF    TITLE. 

years,  by  occupation  a  carpenter,  died  Mar.  8,  1883,  at  the  town 
of  Pleasant  Prairie,  Kenosha  County,  Wisconsin,  of  Bright' s 
disease  of  the  kidneys,  and  was  buried  in  the  "German  Roman 
Catholic  Cemetery." 

That  said  deceased  was  born  Mar.  8,  1828. 

That  the  name  of  the  father  of  said  deceased  was  Henri/ 
Williams,  and  of  his  mother  Jane  {Fly mi)  Williams,  and  that 
the  name  of  said  deceased's  wife  is  Mary  {Jones)  Williams.''3 

§  504.  Continued  —  Probate  of  Death.  Before  admin- 
istration is  granted  upon  the  estate  of  any  person  alleged  to  have 
died  intestate,  satisfactory  proof  is  always  required  to  he  made 
before  the  probate  court  to  whom  application  for  that  purpose  is 
made,  that  the  person  in  whose  estate  letters  of  administration 
are  requested,  is  dead,  and  died  intestate.  This  is  accomplished 
by  an  affidavit  or  verified  petition,  made  by  the  person  applying 
for  such  letters,  or  by  some  other  credible  person,  and  forms  the 
basis  of  all  subsequent  proceedings  in  such  court.  Oral  testi- 
mony of  the  fact  of  death  is  also  received  on  proof  of  will  or 
heirship  and  in  such  cases  a  judicial  finding  of  death  is  entered 
of  record. 

§  505.  Proof  of  Birth  and  Legitimacy.  Certificates  of 
the  marriage  of  the  parents  and  the  baptism  of  the  person  pro- 
posed within  a  reasonable  time  after  the  marriage,  are  admitted 
in  England,  and  it  would  seem  in  Canada,  as  full  and  ample 
evidence  of  legitimacy,  without  any  proof  of  the  identity  of 
the  parties,74  and  such  evidence  in  a  contest  regarding  the  suc- 
cession would  also  be  received  in  the  United  States,  while  for 
many   purposes,    in   the '  absence    of   better    evidence,    general 

73  This  serves  to  identify  the  de-  age  of  a  party;  it  is  pood  evidence 
ceased  with  reasonable  certainty,  of  his  legitimacy,  but  not  of  Ins 
and  precludes  the  necessity  of  age:  Cov.  Con.  Ev.  281.  And  an 
affidavits  or  declarations  of  iden-  entry  in  a  baptismal  register  is 
tit y.  competent    to    prove    only    the    fact 

74  Taylor  on  Titles.  03:  Hubback  and  date  of  baptism:  Blackburn 
on  Sue.  65.  A  certificate  of  bap-  r,  Crawford's  Lessee.  3  Wall.  (U. 
tism    is    no    evidence    of    the    exact  S.)    175. 


DESCENTS.  671 

reputation,75  proof  of  cohabitation,76  admissions  and  declara- 
tions,77 would  be  competent.  Entries  in  a  family  bible  are  also 
admissible  to  prove  birth  when  primary  evidence  can  not  be 
obtained.73  An  abstract,  as  ir  is  compiled  in  this  country,  does 
not  contain  evidence  of  this  character,  and  where  it  is  desirable 
to  obtain  information  relative  to  heirship,  and  no  decree  has 
been  made  in  any  matter  respecting  same,  and  no  system  of 
official  registration  of  births  and  marriages  exists,  an  inquiry 
in  pais  must  be  made.  Where  official  returns  are  made  and 
kept  pursuant  to  law,  such  returns,  or  the  record  thereof,  would 
furnish  prima  facie  evidence  of  the  desired  facts,79  while  the 
probate  of  the  estate,  including  distribution,  assignment  of 
dower,  etc.,  would  also  be  evidence  of  the  same  character. 

Except  in  cases  of  contested  succession  the.  question  of  mar- 
riage does  not  become  very  material  in  the  examination  of  a 
title.  All  intendments  are  in  its  favor  and  very  slight  evidence 
will  usually  be  sufficient  to  sustain  the  claim  of  an  heir  where 
1  'thing  appears  to  oppr  -,e  it.  If  the  estate  has  been  probated 
nothing  more  than  the  proof  of  heirship  taken  therein  will  be 
required ;  if  there  has  been  no  probate  an  affidavit  of  pedigree 
should  be  furnished.  Absolute  facts  are  not  essential  to  such 
an  affidavit  nor  is  it  necessary  that  the  affiant  should  make  a 

75Fenton   r.    Reed,    4.  Johns,  52;  cohabitation   are   sufficient   evidence 

Briee's  Estate,  11  Phila.    (Pa.)   98;  upon    which   to    presume   marriage, 

Ilarland   v.   Eastman,   107   111.   535.  but  proof  of  either  alone  is  not  suf- 

An   affidavit   by    some   person    who  ficient :     Commonwealth    v.    Stump, 

was  present  and  witnessed  the  mar-  53  Pa.  St.  132.     Reputation  is  gen- 

riage  would  be  competent    (Brewer  erally    held    to    consist    of    the    ex- 

V.  State,  59  Ala.  101;  State  V.  Wil-  pressed    opinions    of    persons     who 

liams,  20  Iowa,  98),  or  by  the  cele-  knew  the  parties, 

brant     (State    v.    Goodrich,    14    W.  77  Betsinger    v.    Chapman,    88    X. 

Va.  834) ,  or  by  some  member  of  the  Y.     487;     Proctor    v.    Bigelow,    38 

family  that  a  marriage  was  reputed  Mich.  282;   111.  Land  &  Loan  Co.,  V. 

to   have   taken   place:     Waldron    V.  Bonner,  75  111.  315. 

Turtle,  4  N".  H.  371;   Kelly  v.  Mc-  78  Campbell    v.    Wilson,    33    Tex. 

Guire,     15    Ark.    555;     Jackson    v.  252;    Hunt   V.    Chosen    Friends,    64 

Browner,  18  Johns.   (X.  Y.)  37.  Mich.  07. 

70  Clayton    v.    Wardell,    4    X.    Y.  70  State    v.    Potter,    52    Vt.    33; 

230;   State   v.  Armington,  25  Minn.  Xiles  v.  Sprague,   13   Iowa,   198. 
29.     Proof   of   both   reputation    and 


072  ABSTRACTS    OF    TITLE, 

statement  from  his  own  knowledge.  Common  reputation,  living 
together  of  the  parents,  and  other  corroborating  circumstances 
will  all  tend  to  prove  marriage.  At  common  law  no  special  form 
or  solemnity  is  necessary  to  constitute  a  valid  marriage  and 
where  parties  enter  into  the  relation  by  mutual  consent  the  legal 
results  of  marriage  will  follow.  Such  marriages  have  repeat- 
edly been  recognized  in  the  United  States  so  and  the  assent  may 
and  will  be  presumed  from  the  actions  of  the  parties.  Contin- 
uous matrimonial  intercourse  for  a  number  of  years  will  fur- 
nish grounds  for  the  presumption  of  a  valid  marriage,sl  and 
evidence  of  a  legitimate  descent.82 

§  56G.  Presumption  of  Legitimacy.  It  was  formerly 
the  rule  in  England,  as  also  in  this  country,  that  when  a  child 
was  born  in  wedlock  the  presumption  of  legitamacy  was  conclu- 
sive. But  recent  years  have  greatly  modified  the  old  rule  and 
now,  while  the  presumption  is  not  to  be  rebutted  by  circum- 
stances which  only  create  doubt  and  suspicion,  it  may  yet  be 
wholly  removed  by  proper  and  sufficient  evidence  showing  that 
the  husband  was  (1)  incompetent;  (2)  entirely  absent,  so  as  to 
have  no  intercourse  or  communication  of  any  kind  with  the 

80  Port  V.  Port,  70  111.  486 ;  Meis-  there  is  nothing  apparently  clandes- 
ter  v.  Moore,  96  U.  S.  76;  Hutchins  tine,  and  no  divided  reputation,  and 
V.  Kimmell,  31  Mich.  126...  the  parties  acknowledge  each  other 

81  The  rule  may  be  succinctly  on  all  occasions  and  under  all  cir- 
stated  as  follows:  Where  it  ap-  cumstances  as  man  and  wife  to  the 
pears  that  the  intercourse  between  extent  that  married  persons  ordi- 
the  parties  was  originally  illicit,  narily  do,  a  legal  presumption  of 
there  being  no  impediment  to  mar-  marriage  is  raised.  Cross  v.  Cross, 
riage,  it  will  be  presumed  that  the  55  Mich.  287;  Williams  v.  Williams, 
intercourse  continued  to  be  illicit;  46  Wis.  464;  Harbeck  r.  Harbeck, 
and  where  their  subsequent  rela-  102  N.  Y.  714;  Arnold  v.  Chese- 
tions  appear  to  be  clandestine,  and  brough,  46   Fed.  Red.   700. 

are  kept  concealed  from  others  who  82  K.    P.    R.    R.    Co.    v.    Miller,   2 

will    necessarily    discover    that    the  Cal.  442;   Askew  V.  Dupree,  30  Ga. 

relation  is  illicit,  unless  made  to  be-  173;    Duncan    v.    Duncan,    10    Ohio 

lieve  that  the  parties  are  married,  St.   181;   Dyer  v.  Rrennock,  66  Mo. 

the  evidence  is  insufficient  to  prove  391.       But  see.  Robertson  r.   State, 

marrince.     Rut    where    such    subse-  42  Ala.   509;   Mangne  V.  Mangue.   1 

quent  relations  have  all  the  appear-  Mass.  240;  In  re  Thaley,  93  Pa.  St. 

ance   of  the  marriage  relation,  and  36. 


DESCENTS.  673 

mother;  (3)  entirely  absent  at  the  period  during  which  the 
child  must  in  the  course  of  nature,  have  been  begotten;  or  (4) 
only  present  under  such  circumstances  as  afford  clear  and  satis- 
factory proof  that  there  was  no  sexual  intercourse. 

§  507.  Yalidity  of  Descents.  Titles  depending  upon 
descent  are  viewed  by  our  English  brethren  with  disfavor  and 
ranked  amongst  the  poorest  that  can  be  offered,  or  the  weakest 
that  can  be  asserted.  Such  titles  are  always  to  be  viewed  with 
jealousy,  observe  their  leading  writers,  and  if  dependent  upon 
several  successive  descents  are  scarcely  marketable.83  In  a 
limited  sense  this  may  also  be  true  of  title  by  descent  in  the 
United  States,  and  purchasers  would  be  justified  in  refusing  to 
take  many  titles  that  might  be  offered  by  parties  claiming  in 
this  manner.  This  almost  invariably  follows  in  cases  of  unpro- 
bated  estates,  for  no  title  can  be  more  uncertain  and  insecure, 
and  scarcely  any  length  of  time  in  the  absence  of  other  evi- 
dence, would  be  sufficient  to  furnish  a  reasonable  presumption 
of  death  and  the  exclusion  of  the  rights  of  other  heirs  who 
might  possess  valid  claims  upon  the  property.84  Proof  that 
certain  persons  are  the  only  children  who  survive  their  father 
does  not  establish  the  fact  that  they  are  the  only  heirs,  as  he 
may  have  grandchildren  by  deceased  children,85  and  hence  it  is 
necessary,  in  some  instances,  that  additional  information  to  that 
furnished  by  the  proceedings  in  probate,  be  also  procured  to 
fully  establish  an  asserted  right.  A  properly  taken  proof  of 
heirship  in  probate  should,  however,  show  the  fact  of  decease 
of  children  prior  to  the  death  of  the  intestate  and  whether  or  not 
such  children  died  without  issue,  but  frequently  this  fact  is  not 
found.86     The  statute  of  limitations  will  furnish  a  strong  re- 

83  Atkinson  on  Titles,  374;  Hub-  State  of  Illinois  no  proof  of  heirship 
back  on  Sue.  (Eng.)  71;  Taylor  on  is  required  other  than  that  fur- 
Titles   (Canada),  61.  nished  by  the  statements  of  the  peti- 

84  A  deceased  person  is  always  tion  for  letters  of  administration, 
presumed  to  have  left  heirs :  Pile  and  that  in  such  courts  it  is  not 
r.  McBratney,  15  111.  314.  customary    to    make    any    judicial 

85  Skinner  v.   Fulton,  39  111.  484.  findings   of   heirship.     Probably  the 

86  From  personal  inquiries  made  same  conditions  prevail  in  other 
by  author  it  appears  that  in  a  ma-  States, 

jority  of  the  probate  courts  of  the 
43 


674  ABSTRACTS    OF    TITLE. 

enforcement  to  a  doubtful  title  by  descent,  and  serve  to  effectu- 
ally settle  many  of  the  questions  that  otherwise  would  render 
the  title  undesirable. 

§   568.     Abstract  of  Descents.     Under  the  English  system 
of  abstracting,  a  descent  is  shown  by  a  pedigree,  supported  by 
certificates  of  marriage,  births  and  deaths,  inserted  in  the  order 
of  their  date.     If  the  certificates  can  not  be  procured,  which, 
from  the  loss  or  imperfect  state  of  registers  or  other  circum- 
stances is  sometimes  the  case,  substitution  is  made  of  entries  in 
the  Royal  College  of  Arms,  in  family  bibles  or  books,  inscrip- 
tions on  tomb  stones,  and  the  solemn  declarations  of  family 
solicitors,    tenants,    workmen,    and    parties    acquainted    with 
circumstances  and  facts,  as  well  as  such  evidence  of  the  seizin 
of  the  different  parties,  shown  by  the  pedigree  to  be  entitled, 
as  can  be  adduced ;  for  which  evidence  old  leases  of  the  prop- 
erty,  land  tax,   and  parochial  assessments,   are   referred   to.87 
Pedigrees,  or  family  histories,  may  be  used  to  a  very  limited 
extent  in  the  eastern  States  and  are  sometimes  alluded  to  by 
writers  on  conveyancing,  but  in  the  west  they  are  practically 
unknown,  while  authentic  information  of  the  facts  to  which  a 
pedigree  relates  is  usually  extremely  difficult  of  ascertainment, 
and  the  sources  as  mentioned  above  would  hardly  be  considered 
sufficiently  certain  by  the  average  attorney.88 

Family  records,  when  shown  to  have  been  regularly  compiled, 
are  not  without  weight  in  the  United  States,  and  are  frequently 
resorted  to  for  proof  of  heirship  in  the  administration  of  estates 
and  trial  of  disputed  land  titles,  but  while  they,  with  other  evi- 
dence, will  be  received  by  courts  to  prove  pedigree  and  establish 
rights  of  succession,  they  do  not  constitute  such  evidence,  save 

87  Moore   on  Abst.   44. 

88  As  a  matter  of  curiosity,  rather  than  for  any  real  utility,  the  follow- 
ing abstract  of  an  English  pedigree  is  inserted.  The  object  is  to  show 
title  by  descent  in  Thomas  Noakes: 

Ralph  Noakes  was  the  grandfather  of  Thomas  Noakes,  Esq.,  of  Cliff 
Hall  (the  mortgagor),  as  will  be  seen  by  the  subjoined  pedigree  (ex  parte 
paterna)  copied  from  one  in  his  possession,  and  kept  by  his  family.  It 
is  also  shown  by  different  entries  found  in  the  family  registers,  now 
likewise  in  his  possession.     The  fact  of  his  being  the  direct  lineal  heir  of 


DESCENTS.  675 

as  they  appear  in  court  proceedings  by  way  of  recital,  as  is  re- 
quired in  compiling  an  abstract,  and  examiners  as  a  rule  do 
not,  and  as  a  matter  of  fact,  should  not,  attempt  to  introduce 
them  or  any  other  matter  strictly  in  pais.  A  judicial  determi- 
nation in  an  action  brought  by  adverse  claimants,  or  in  a  pro- 
ceeding in  rem  to  determine  the  rights  and  apportion  the  in- 
terests of  the  parties  before  the  court,  would  be  proper  record 
evidence  of  descent  and  right  of  succession,  while  the  proceed- 
ings in  probate  are  evidence  of  the  same  nature.  These  matters 
therefore,  must  always  be  noted  and  appropriately  exhibited, 
and  with  a  very  few  exceptions  will  furnish  sufficient  data,  and 
be  sufficiently  conclusive  of  the  facts  of  death  and  heirship,  to 
warrant  the  belief  that  the  persons  so  found  to  be  the  heirs  of 
the  decedent  are  such  heirs  and  the  only  ones  entitled  to  partici- 
pate in  the  distribution  or  share  in  the  succession. 

§  569.  Continued  —  Probate  Proceedings.  The  usual 
and  ordinary  method  of  showing  a  descent  in  the  United  States 
is  by  an  abstract  of  the  settlement  of  decedent's  estate.  This 
should  disclose  the  jurisdiction  of  the  court,  appointment  of 
administrator,  proof  of  heirship,  and  adjudication.  This  is 
sufficient  to  show  the  descent,  but  in  order  that  the  title  of  the 
heirs  may  not  be  obscured  by  latent  defects  or  creditors'  liens, 

said  Ralph  Noakes  is  also  confirmed  by  entries  at  the  Royal  College  of 
Arms. 

And  the  following  is  a  pedigree  and  entries  referred  to: 
Ralph  Nokes  =  Ann  Freke. 


Richard  =  Sarah    Hart.  Ann  =  John    Brown. 

ob.  ob. 

A y 

Thomas  =  01iva  Jones.  Susan  =  James  Old.     Jane. 

l  ob.  set.   18. 


Thomas  =.  Charlotte  Smart.  Samuel,  Eliza,  Thomas. 


Thomas,  and  six  other  children. 

"  Feb.  10,  1740]  Richard,  only  son  of  Ralph  Noakes,  was  born  at  Cliff 
Hall,  at  3  in  the  morning." 

"  April  3,  17021  Thomas,  only  son  of  Richard,  born  at  Cliff  Hall  on 
Tuesday  the  3d  of  April,   1762,  at   12  o'clock  at  night." 

••June  19,  1784]  Thomas,  son  of  Thos.  Noakes  and  Charlotte  Smart, 
born  at  Cliff  Hall,  at  9  in  the  morning."— Moore  on  Abst.  58. 


676  ABSTRACTS    OF    TITLE. 

the  inventory,  payment  of  claims,  and  final  report  and  discharge 
of  the  administrator  should  also  be  shown.  The  degree  of  de- 
tail is  optional  with  the  examiner,  provided  the  jurisdiction  be 
made  to  appear  and  an  apparent  regularity  is  shown  in  all  of 
the  subsequent  steps.  The  following  is  offered  as  a  specimen  of 
a  very  simple  settlement: 


In  the  matter  of  the  estate 

of 
Julia  A.  Mason. 


In  Probate  Court,  Cook  County,  Ills. 
Descent. 

Case  No.  2,000  in  box  135. 
Petition  of  Anna  Haskell  for 
letters   of  administration,  filed 
May  10,  1883.     Record  U,  pg.  12. 

Represents  that  Julia  A.  Mason  died  intestate,  Aug  2,  1882, 
leaving  property  and  effects  in  Cook  County,  Ills.,  as  follows, 
to  wit:  [describe  the  real  estate]  and  leaving  her  surviving,80 
Anna  Haskell  (wife  of  Charles  Haskell)  and  Walter  A  Mason, 
her  only  heirs  at  law. 

Sworn  to  May  10,  1883. 

Letters  of  administration  issued  to  Anna  Haskell,  dated  May 
10,  1883. 

Bond  in  sum  of  $6,1^00.00  with  sureties,  filed  and  approved 
May  10,  1883. 

Warrant  to  appraisers  issued,  dated  May  10,  1883. 
Proof  of  heirship  entered  May  10,  1883. 
The  court  finds  from  the  evidence  produced  in  open  court, 
that  Julia  A.  Mason  died  Aug.  2,  1882,90  leaving  her  surviving 

89  This   fact,    if  properly   proved,  to     a     representation :      Skinner    v. 

will    be    sufficient    to    establish    the  Fulton,   39   111.   484. 
heirship     of     the     persons     named  90  The  proof  of  death  is  the  foun- 

( Russell  v.  Jackson,  22  Wend.    (N.  dation     of      title     by      descent     or 

Y. )   277),  but  is  not  conclusive,  nor  through     the     administrator;     this 

does     it     prove     that    the     persons  must  be   conclusive,  and,  while  the 

named  are  the  only  heirs  entitled  to  evidence    need    not    be    shown,    the 

share  in   the  succession,  as  the  in-  fact   should  be   made   to   appear   as 

testate  may  have  had  children  who  strongly   as    possible.     See    Thomas 

did   not    survive   him,    but   who    in  V.  People,  107  111.  517,  for  a  learned 

turn  may  have  left  children  entitled  and    instructive    opinion    on   grants 


DESCENTS.  677 

Walter  A.  Mason,  her  son,  and  Anna  Haskell  (wife  of  Charles 
Haskell)  her  daughter,  her  only  next  of  kin  and  heirs  at  law. 

Proof  of  publication  and  posting  of  notices  for  adjudication 
filed  June  1,  1883,  and  approved  July  16,  1888. 

Adjudication  ordered.  July  16,  1888. 

Proceed  in  this  order  showing  succeeding  steps  in  much  the 
same  manner  as  an  abstract  of  a  devise.  This  would  include 
the  proof  and  payment  of  claims,  and  the  final  order  of  distri- 
bution and  discharge  of  the  administrator. 

§  570.  Settlement  without  Administration.  It  is  com- 
petent for  all  the  heirs  to  an  estate,  if  of  age,  to  settle  and  pay 
the  debts  of  the  estate,  and  to  make  partition  of  the  property 
among  themselves,  without  any  administration;  and  neither 
creditors  nor  debtors  of  the  estate  have  a  right  to  complain.91 
If,  in  pursuing  this  course,  they  sell  portions  of  the  property 
and  make  proper  application  of  the  proceeds  to  the  payment  of 
the  debts,  their  acts  are  entitled  to  full  faith  and  credit,  as 
though  they  acted  in  the  capacity  of  administrators  or  execu- 
tors.92 

Where  deeds  are  found  upon  the  records  which  purport  to 
have  been  executed  by  the  heirs  at  law  of  a  party  in  whom  title 
is  shown  to  have  been  vested,  and  no  administration  appears  to 
have  been  had  upon  the  estate  of  such  alleged  ancestor,  it  is 
well  to  call  attention  to  such  latter  fact  by  a  brief  note  imme- 
diately following  the  heir's  deed.     Thus: 

I^ote. — We  find  no  evidence  of  administration  in  Cook  Coun- 
ty, Illinois,  on  the  estate  of  William  Black,  nor  probate 
of  his  will,  if  any. 

It  will  frequently  happen  that  the  ancestor  was  a  non-resident 
and  that  administration  was  had  upon  his  estate  at  the  place 

of    administration,     made    on    pre-  see    Brashear    V.    Connor,    29     La, 

sumptions    and    insufficient   proof.  Ann.   374. 

91  Taylor  v.  Phillips,  30  Vt.  238;  92  Morris  t'.  Halbert,  3(5  Tex.  19. 
Babbitt  v.  Bowen,  33  Vt.  437;   and 


678  ABSTRACTS    OF    TITTE. 

of  his  late  domicile.  When  such  is  the  fact  an  exemplification 
of  such  proceedings  should  be  procured  and  filed  in  the  registry 
of  deeds  of  the  county  where  the  land  in  question  is  situate. 
This  will  be  sufficient  to  show  descent,  provided  a  finding  of 
heirship  appears,  but  in  order  to  make  an  indefeasible  title  an 
ancillary  administration  should  be  had.  The  chief  object  of 
such  ancillary  administration  is  to  bar  the  claims  of  creditors, 
and  if  the  property  is  valuable  this  step  should  always  be  taken. 
§  571.  Escheat.  The  latest  taker,  under  the  statute  of 
descents,  is  the  State.  But  the  State  is  not  to  be  deemed  an 
heir  within  the  ordinary  meaning  of  the  term,  and  takes,  not  as 
an  heir,  but  rather  because  there  are  no  heirs.93  The  right  of 
the  State  is  established  by  a  formal  proceeding  generally  called 
"  inquest  of  office,  "  raid  where  title  is  deduced  through  escheat 
this  proceeding  must  be  shown.  Instances  of  title  derived  in 
this  manner  are,  however,  very  rare. 

93  State  V.  Ames,  23  La.  Ann.  69. 


CHAPTER  XXXI. 


ADVERSE   TITLE. 


§  581. 

Possession  as  notice. 

582. 

Who    may    acquire    adverse 

title. 

583. 

Remainder-men. 

584. 

Reversioners. 

585. 

Tenants  in  common. 

586. 

Persons  under  disability. 

587. 

Married  women. 

588. 

Adverse    rights    as    against 

the   State. 

589. 

Effect    of    adverse     posses- 

sion. 

590. 

Proof  to  support  title. 

§  572.     Adverse      titles,      generally 
considered. 

573.  Adverse  conveyances. 

574.  The    character    of    adverse 

possession. 

575.  Color  of  title. 

576.  Adverse     possession     under 

color  of  title. 

577.  Constructive   possession. 

578.  Adverse      possession      from 

user. 

579.  Naked     possession    without 

claim. 

580.  Tacking. 

§  572.  Adverse  Titles,  Generally  Considered.  In  ex- 
aminations of  title  it  is  not  uncommon  to  find  two,  or  even 
three,  conflicting  claims  of  title  evidenced  by  deeds  or  other 
matter  of  record,  while  inquiries  in  pais  may  further  disclose 
claims  of  title  and  ownership  founded  upon  actual  occupation 
and  possession,  under  claims  of  right  resting  upon  unrecorded 
deeds,  undisclosed  descents,  or  prescriptive  user.  In  some 
cases  the  adverse  titles  have  a  common  origin  and  all  flow  from 
the  same  source;  in  others  they  originate  through  tax  sales,  or 
by  reason  of  independent  conveyances  from  individuals.  Some- 
times the  adverse  titles  are  only  seeming,  being  the  results  of 
mistakes  in  the  draughting  of  instruments  of  conveyance.  The 
questions  raised  by  these  conflicting  claims  are  numerous  and 
sometimes  difficult  of  solution,  and  are  among  the  most  per- 
plexing incidents  upon  which  counsel  are  obliged  to  pass. 

§  573.  Adverse  Conveyances.  Under  this  head  are 
grouped  all  conveyances  emanating  from  independent  sources 
and  not  connected  with  original  grantor  or  forming  a  part  of 

679 


680  ABSTRACTS    OF   TITLE. 

the  regular  course  of  title.  These  conveyances  may  consist  of 
tax  deeds  and  resulting  conveyances  which  have  not  been 
merged  into  the  common  ownership ;  an  assertion  of  title  by 
one  having  no  record  evidence;  and  deeds  which  by  erroneous 
descriptions  do  not  convey  the  property  intended,  but  cover 
other  and  entirely  different  parcels.  It  is  the  practice  of  ex- 
aminers to  arrange  these  deeds  as  an  appendix  to  the  chain, 
setting  them  out  under  the  classified  head,  "  adverse  convey- 
ances," and  prefixing  to  them  the  statement,  "  we  also  find." 
Where  an  adverse  title  appears  of  record,  followed  by  mesne 
conveyances,  and  eventually  merging  into  the  original  title, 
they  constitute  part  of  the  chain  and  are  shown  in  the  regular 
course.  In  cases  of  this  kind  the  better  way  is  to  trace  the  title 
from  the  original  grantor  to  the  person  in  whom  a  perfect  and 
unembarrassed  title  is  found ;  here  stop  and  separate  what  fol- 
lows by  a  broad  dash,  or,  if  desired,  a  prefatory  note ;  then  show 
the  tax  deed  or  other  initial  adverse  conveyance  and  the  con- 
veyances resulting  therefrom,  until  title  is  again  found  in  the 
person  proposed.  Now  separate  the  succeeding  matter  as  before, 
and  the  next  deed  will  commence,  a  reunited  and  perfect  chain. 
Isolated  adverse  conveyances,  as  has  been  stated,  are  frequently 
the  result  of  error,  and  are  often  followed  by  curative  deeds 
which  demonstrate  same.  When  the  examiner  can  supply 
the  necessary  information  an  explanatory  note  should  follow 
the  adverse  deed,  thus : 

Note. —  We  find  recorded  in  Booh  500,  page  260,  a  deed  be- 
tween the  same  parties,  and  bearing  same  date  as  the 
foregoing,  conveying  property  in  the  northeast  quarter 
of  Sec.  10,  T.  2  N.,  R.  23  E.,  and  wherein  it  is  recited 
that  said  deed  is  given  to  correct  an  error  in  the  descrip- 
tion of  land  conveyed  by  deed  recorded  in  Booh  Jf90, 
page  359  (shown  as  No.  25  of  this  examination;  or, 
shown  above). 

The  foregoing  suggestion  is  considered  the  better  way  to  treat 
adverse  conveyances,  particularly  when  it  can  not  be  demon- 


ADVERSE    TITLE.  681 

strated  that  the  adverse  conveyance  is  the  result  of  error  and 
not  the  assertion  of  an  independent  title ;  yet  examiners  of 
undoubted  standing  and  ability  have  frequently  deemed  an 
explanatory  note,  without  any  exhibition  of  the  adverse  deed, 
sufficient  for  the  purposes  of  the  abstract.  Should  the  later 
method  be  considered  desirable,  a  statement  similar  to  the  fol- 
lowing may  be  made : 

Adverse  Conveyances. 


In  Book  185,  page  537,  is  recorded  a  deed  from  John  II.  Fel- 
lows and  wife  to  Lorenzo  Dow,  purporting  to  convey  land 
described  as:  Beginning  at  the  southeast  corner  south  of 
the  Indian  Boundary  Line  of  southeast  quarter  of  Section 
35,  Town  JfO,  Range  13;  thence  north  on  east  line  of  said 
quarter  section  1/.0  rods;  thence  west  160  rods;  thence  south 
1/.0  rods;  thence  east  160  rods,  containing  IfO  acres;  and 
in  Booh  lf.9  of  Mortgages,  page  519,  is  recorded  a  mort- 
gage from  said  Lorenzo  Dow  to  James  Barton,  covering 
same  premises;  said  mortgage  is  released  on  margin  of 
record  (as  appears  by  our  indices).  Fellows  owned  land 
in  Section  35,  Town  J+l,  Range  13,  and  we  assume  that 
said  deeds  by  Fellows  and  Dow  were  intended  to  convey 
land  there  and  not  in  Section  35,  Town  1/.0,  Range  13, 
where  he  had  no  interest  whatever. 

The  foregoing  example  is  given  to  show  the  methods  that 
can  be  and  sometimes  are  employed,  rather  than  as  a  precedent 
to  be  followed,  for,  although  the  conveyances  are  sufficiently 
identified  to  furnish  actual  notice  of  their  character  and  import 
to  all  persons  perusing  the  abstract,  and  possibly  sufficient  ex- 
planation is  given  to  warrant  the  assumption  of  the  examiner, 
and,  in  the  instance  under  consideration,  the  examiner  has  suffi- 
ciently discharged  his  duty  to  relieve  himself  of  liability,  yet 
the  practice  of  showing  positive  transactions  by  notes,  and  of 
making  assumptions  without  expressed  authority,  is  dangerous 


682  ABSTRACTS    OF    TITLE. 

and  often  misleading,  and  'calculated  to  involve  the  examiner 
in  serious  complications.  Any  and  every  conveyance,  incum- 
brance, lien  or  charge  which  directly  or  by  just  implication 
affects,  impairs  or  clouds  the  title,  if  a  matter  of  record,  and 
within  the  dates  comprising  the  period  of  the  search,  should  be 
shown  affirmatively  and  without  expression  of  opinion  as  re- 
gards the  legal  effect  of  the  instruments,  or  the  real  or  supposed 
intention  of  the  parties,  and  if  the  examiner  is  also  the  counsel, 
let  the  abstract  and  the  opinion  be  separate  and  distinct  papers. 

§  574.  Adverse  Possession.  An  adverse  title  need  not 
depend  on  documentary  evidence,  but  may  rest  wholly  on  oc- 
cupation, or  on  occupation  coupled  with  other  circumstances. 
This,  of  course,  the  abstract  will  not  show  and  the  facts  which 
constitute  such  title  are  ascertained  by  inquiries  in  pais. 

It  is  a  well  established  rule  that  a  possession,  to  be  adverse, 
must  be  so  open,  notorious  and  important  as  to  give  notice  to 
parties  interested  that  a  claim  of  right  is  intended  thereby ; 
that  the  right  of  the  true  owner  is  invaded  intentionally,  and 
with  a  purpose  to  assert  a  claim  of  title  adversely  to  his ;  and 
to  furnish  the  basis  of  a  substantial  title,  must  extend  in  un- 
broken continuity  over  the  period  prescribed  by  the  statute  of 
limitations.1  This  element  of  peaceful  continuity  is  perhaps 
more  distinctly  material  in  conferring  title  by  adverse  posses- 
sion than  any  other,2  and  is  a  consideration  of  primary  im- 
portance in  all  examinations. 

A  statutory  distinction  is  made  in  some  States  between  a 
claim  of  title  founded  upon  some  written  instrument  or  judg- 
ment, and  an  actual,  continued  occupation  under  claim  of  title, 

1  Carrol  V.  Gillien,  33  Ga.  539;  Wallace,  78  N.  G.  354;  Shields  v. 
Beatty  v.  Mason,  30  Md.  409;  Roberts,  64  Ga.  370.  Possession  of 
Dixon  v.  Cook,  47  Miss.  220;  Lara-  land  once  established  by  material 
more  v.  Minish.  43  Ga.  282;  Bow-  acts  of  visible,  notorious  ownership 
man  V.  Lee,  48  Mo.  335 ;  Calhoun  v.  must  be  presumed  to  continue  until 
Cook,  9  Pa.  St.  226;  Cahill  v.  Pal-  open,  notorious,  adverse  possession 
mer,  45  N.  Y.  484;  Booth  v.  Small,  be  proved  to  have  been  taken  by 
23  Iowa,  177.  another:     Clements   v.    Lamkin,   34 

2  Tyler   Adv.   Enj.   907;    Groft   v.  Ark.  598. 
Weekland,  34  Pa.  308;   Williams  V. 


ADVERSE    TITLE.  6S3 

exclusive  of  any  other  right,  but  not  founded  upon  any  written 
instrument,  judgment  or  decree;  and  the  period  of  occupancy 
in  the  latter  case  must  be  continued  much  longer  than  in  the 
former.  Thus,  in  the  first  instance,  the  title  may  become  per- 
fect and  indefeasible  at  the  end  of  ten  years,3  while  in  the  latter 
the  period  of  legal  memory  must  have  run  to  warrant  the  pre- 
sumption of  an  original  valid  entry,  and  the  loss  or  destruction 
of  the  muniments  that  establish  the  occupant's  right  to  the  soil. 
The  character  of  the  possession,  too,  may  be  vastly  different 
under  the  two  claims ;  as,  in  the  first  instance,  a  partial  occu- 
pancy only  is  required,  such  partial  occupancy  drawing  to  it 
constructively  the  possession  of  all  of  the  land  mentioned  in  the 
instrument  under  which  the  claim  is  made,  while  in  the  latter 
the  adverse  holding  extends  only  to  so  much  of  the  land  as  may 
have  been  actually  occupied.4  But  in  either  event,  to  constitute 
a  bar  to  the  assertion  of  the  legal  title,  the  possesion  must  be 
hostile,5  and  not  a  mere  trespass,6  and  must  also  be  visible,7 
continuous,8  notorious,9  definite,10  and  inconsistent  with  the 
claim  of  others,11  while  the  claim  of  right  accompanying  such 
possession  must  not  have  originated  in  fraud.12     These  are  the 

3  Limitation  periods  are  wholly  5  Turney  v.  Chamberlain,  15  111. 
statutory.  The  text  states  the  gen-  271 ;  Thompson  v.  Felton,  54  Cal. 
eral    rule    but    in    some    States    a       547. 

shorter  period  is  prescribed.     Thus,  c  Humbert     v.     Trinity     Ch..     24 

in  Illinois  possession  under  color  of  Wend.    587;    Cahill    r.    Palmer.    45 

title    with    payment    of    taxes    for  N.  Y.  479. 

seven  years  will   create  an  estoppel  7  Irving  v.  Brownell,   11   111.  402. 

available    against    all    persons    not  8  Jackson   r.   Berner,  48   111.   203. 

under  disability.  9  McClellan    v.    Kellogg,    17     111. 

4  What  acts  are  sufficient  to  con-  498;  Dixon  r.  Cook.  47  Miss.  220. 
stitute    possession    are    matters    of  10  Fugate  v.  Pierce,  49  Mo.  441 ; 
local  statutory  regulation,  but,  as  a  Grube  r.  Wells,  34  Iowa,  148. 
rule,   there   must   be   either  cultiva-  U  Ambrose  V.  Raley.  58  111.  506; 
tion  or  improvement;  protection  by  Sparrow  v.  Hovey,  44  Mich.  <i3. 

a   substantial   enclosure;    and  a   use  12  Moody  V.  Moody,   16   Hun    (N. 

of  the  premises,  if  not  enclosed,  for  Y. ) ,    189;    Laramore    V.    Minish,   43 

the  supply  of  fuel,  or  husbandry,  or  Ga.     282.      The     question      whether 

the  ordinary  use  thereof  by  the  oc-  one    who    holds    by    color    of    title 

cupants    in    the    same    manner    that  holds  in  good  faith  or  b;id,  depends 

lands  similarly  situated  are  used.  upon    the    purpose    with    which    he 


684  ABSTRACTS   OF    TITLE. 

^.universally  recognized  elements  that  must  enter  into  every  ad- 
verse holding,  and  unless  they  are  present  the  settled  principles 
of  law  require  us  to  consider  the  true  owner  as  constructively 
in  possession  of  the  land  to  which  he  holds  the  title.13 

A  clandestine  entry  or  possession  will  never  serve  to  set  the 
statute  in  motion,  for  in  order  to  bar  the  true  owner  from  as- 
serting his  title,  he  must  have  actual  or  constructive  notice  of 
the  instrument  under  which  the  adverse  claimant  enters,  or 
knowledge,  or  the  means  of  knowledge  of  such  occupation  and 
claim  of  right,14  and  the  entry  must  be  made  and  the  possession 
continued  under  such  circumstances  as  to  enable  such  true 
owner,  by  the  use  of  reasonable  diligence  to  ascertain  the  fact 
of  entry  and  the  right  and  claim  of  the  party  making  it.15 

Any  substantial  interruption  of  an  adverse  possesion,  before 
the  lapse  of  the  period  required  to  constitute  the  statutory  bar, 
will  have  the  effect  of  restoring  the  seizin  of  the  rightful  owner 
of  the  land,  and  in  order  to  set  the  statute  in  motion  a  new 
entry  and  disseizin  will  be  necessary.  It  seems  also,  that  the 
running  of  the  statute  may  be  interrupted  if  the  possession 
ceases  to  be  adverse,  notwithstanding  a  possession  in  fact  may 
still  continue.16 

§  575.  Color  of  Title.  It  is  a  general  rule  that  where 
one  enters  upon  land  under  a  recorded  deed,  his  entry  and 
claim  must   be  referred   to  that   deed  and  measured   by   it.17 

acquired    the    title    relied    on,    and  Doe  V.  Thompson,  5   Cow.    (N.  Y. ) 

the  reliance  placed  upon  it.     If  the  371. 

holder  received  it,  knowing  it  to  be  14  Fugate  v.  Pierce,  49  Mo.  441 

worthless,  or  in  fraud  of  the  own-  Crispen  v.  Hannavan,   50  Mo.  536 

er's  rights,  it  cannot  be  said  to  be  Thompson   v.   Pioche,   44   Cal.    508 

held    in    good    faith.      Still,     many  Nowlin  v.  Reynolds,  25  Gratt.  (Va.) 

things    that    may    be    sufficient    to  137. 

■"destroy    the    presumption    of    good  iSSoule   v.    Barlow,   49   Vt.   329; 

'faith  may  be  insufficient  to  prevent  Brown  v.  Cockerell,  33  Ala.  151. 
.the   deed   from  being  color  of  title.  10  Stewart    v.    Stewart,    83    Wis. 

See   Hardin   v.   Gouverneur,   69    111.  364. 

/140;   Hall  v.  Mooring,  27  La.  Ann.  1 7  Stevens    v.     Brooks,     24    Wis. 

596.  326;   Crary  v.  Goodman,  22  N.  W. 

13  Bliss  r.  Johnson,  94  N.  Y.  235;  170. 


ADVERSE    TITLE.  685 

Such  deed,  though  void  in  fact,  gives  a  "colorable  title"18  to 
the  purchaser,  and  where  it  professes  to  convey  the  entire  estate 
a  claim  and  occupation  under  it  creates  an  adverse  possession  as 
against  all  the  world.19  What  amounts  to  a  color  of  title,  is 
still  an  open  and  unsettled  question,  though  numerous  de- 
cisions denning  its  character  exist  in  all  the  States  as  well  as 
in  the  federal  courts,  and  notwithstanding  that  in  a  few  in- 
stances it  has  been  held  that  documentary  evidence  is  not 
required  to  support  a  claim  under  color  of  title,20  the  weight  of 
authority  indicates  that  a  written  instrument  is  necessary,  so 
far  good  in  appearance  as  to  be  consistent  with  the  idea  of 
good  faith,  and  purporting  on  its  face  to  convey  a  title.21  The 
definitions  in  the  books,  though  widely  divergent  in  many  par- 
ticulars, yet  agree  in  the  main  on  these  points. 

A  claim  of  heirship  has  been  held  to  come  within  the  term, 
the  supposed  inheritance  forming  the  "  color,"  for  says  Gibson, 
J.,  "  one  entering  by  a  title  depending  on  a  void  deed,  would 
certainly  be  in  by  color  of  title,  and  it  would  be  strange  if 
another,  entering  under  an  erroneous  belief  that  he  is  the  legiti- 
mate heir  of  the  person  last  seized  should  be  deemed  other- 
wise." 22  A  confusion,  however,  seems  to  exist,  arising  from  the 
interchangeable  use  of  the  terms  "  color "  and  "  claim "  of 
title,  which,  as  a  matter  of  fact,  may,  and  do,  exist  separate 
and  independent  of  each  other.  To  constitute  the  former, 
there  must,  as  a  rule,  be  a  paper  title,  while  the  latter  may  exist 
wholly  by  parol.23  Possession  under  a  claim  of  title,  without 
a  deed  or  other  "written  instrument,  limits  the  person  so  assert- 
ing bis  claim,  to  his  actual  enclosure  or  occupancy,24  but  when 

lSEdgerton   v.  Bird.  6  Wis.  527;  r.    Starr,    1   Sawyer,   20;   Gittens  V. 

Brooks  v.  Bruyn,  35  111.  394;  Lind-  Lowry,  15  Ga.  338. 
say    r.    Fry,    25    Wis.    400;    Beverly  22  MeCall  v.  Niely,  3  Watts  (Pa.) 

v.  Brooke.  9   Ga.   440;   Hamilton   v.  72;   and  see  Cooper  r.  Ord,  60  Mo. 

Bogge^s.  03  Mo.  233.  420;    Teabout   V.   Daniels,   38   Iowa, 

19  Hall   v.   Law.    102   U.    S.   461;  158. 

Bell   V.  Longworth,  6  Ind.   273.  23  Hamilton   V.  Wright,   30  Iowa. 

20  Cooper    r.   Ord,   60   Mo.   431.  486;    Clagett    V.    Conlee,    16    Iowa, 

21  Baker    v.    Swan.    32   Md.    355;       487. 

Kruse  v.  Wilson,  79  111.  240;  Stark  24  Dills  v.  Hubbard,  21    111.   328. 


686  ABSTRACTS    OF    TITLE. 

founded  upon  a  claim  and  color  of  title,  a  constructive  posses- 
sion of  the  entire  tract  will  follow  the  actual  occupancy  of 
any  portion,25  provided  the  deed  or  other  matter  be  of 
record.26 

§  576.  Adverse  Possession  Under  Color  of  Title.  A 
valid  title  is  not  required  in  order  to  enable  a  party  to  rely 
upon  adverse  possession  under  the  statute  of  limitations,27  nor 
is  it  necessary  that  he  should  trace  title  through  a  chain  to  any 
source.28  A  deed  "which  purports  to  convey  a  complete  title 
will  be  sufficient  to  give  color  of  title,  although  the  grantor  may, 
in  fact,  have  only  the  rights  of  a  mortgagee,29  or  lessee ;  30  or,  if 
the  deed  was  issued  on  an  erroneous  or  void  decree ;  31  or,  in 
pursuance  of  a  sale  under  an  imperfectly  executed  trust ;  32  and 
generally,  when  followed  by  a  continuous  and  uninterrupted 
possession  for  the  entire  statutory  period,  it  will  constitute 
an  adverse  holding,  effective  for  all  purposes,  however  ground- 
less the  supposed  title  may  be.33  It  is  essential,  however,  that 
the  lands  claimed  be  fully  identified  or  described  in  the  instru- 
ment,34 for  mere  occupancy  of  land  in  virtue  and  under  a 
claim  of  a  grant  which  does  not  embrace  it,  is  not  adverse 
possession  sufficient  to  constitute  an  estoppel  or  effect  a  transfer 

25  Brooks  v.   Bruyn,    18   111.   539;  29  Stevens  v.  Brooks,  24  Wis.  326. 

Scott  V.  Elkins,  83  N.  C.  424 ;  Cole-  30  Sands    v.    Hughes,    53    N.    Y. 

man  v.  Billings,  90  111.  577;   Little  287. 

V.   Megquier,    2    Me.    176;    Webb   v.  31  Huls    v.    Bunten,    47    111.    396; 

Richardson,  42  Vt.  465 ;  but  if  the  Hinkley  v.  Green,  52  111.  223. 

true  owner  be  in  actual  possession  32Gebhard    v.    Sattler,    40    Iowa, 

of  any  part   of  the  lands,  his  con-  153. 

structive   seizin   extends   to   all   not  33  Ford  v.  Wilson,  35  Miss.  504; 

in    fact   occupied   by   the    intruder:  Grant  v.  Fowler,  39  N.  H.  104;  Ty- 

Hunnicut  V.  Peyton,  102  U.  S.  333.  ler  Adv.  Enj.,  907;  Davis  v.  Easly, 

2G  Tritt  V.  Roberts,  64  Ga.   156.  13  111.   192. 

27  Close  v.  Samm,  27  Iowa,  503;  34  Lane  V.   Gould,    10   Barb.   254; 

Jackson  v.   Woodruff.    1    Cow.   276;  Jackson   v.   Woodruff,    1    Cow.   276; 

Elliott  V.  Pearle,  10  Pet.  412;  Ford  Fugate  v.  Pierce,  49  Mo.  441;  Grube 

r.   Wilson,   35   Miss.   504;   Grant  V.  v.   Wells,    34   Iowa,    148;    Brown  V. 

Fowler,  39  N.  H.  104.  Coble,  72  N.  C.  391. 

2SRawson  V.  Fox,  55  111.  200. 
Compare  Hedges  v.  Paulin,  5  Biss, 
177. 


ADVERSE    TITLE.  687 

of  title,35  and  the  claim  must  not  be  general,  but  specific.36 
§  577.  Constructive  Possession.  Where  title  is  asserted 
adversely  under  a  claim  of  right,  and  bv  reason  of  occupancy 
and  possession,  it  is  a  rule  of  universal  application  that  the 
extent  of  the  claim  must  be  measured  by  the  instrument  under 
which  the  claim  is  made.37  When  such  instrument  purports 
to  convey  an  estate  in  fee  in  specific  lands,  although  actual  oc- 
cupancy is  only  had  of  a  portion  of  the  premises  described, 
the  claimant  is  yet  constructively  in  possession  of  the  entire 
tract,38  his  occupancy  of  a  part  being  in  contemplation  of  law 
the  occupancy  of  every  portion,39  but  there  can  be  no  construc- 
tive possession  without  the  color  of  title  40  afforded  by  some 
deed,  instrument  or  proceeding  purporting  to  convey  the  whole 
and  defining  boundaries,  as  well  as  actual  possession  of  a  part.41 
Nor  will  constructive  possession  be  sufficient  to  confer  title  to 
any  portion  of  the  tract  in  the  adverse  seizin  of  another.42 

§  578.  Adverse  Possession  From  User.  An  actual  con- 
tinued occupation  of  lands  under  a  claim  of  title  exclusive  of 
any  other  right,  although  not  founded  on  a  written  instrument, 
judgment  or  decree,  is  yet  sufficient,  if  extending  through  the 
entire  statutory  period,  to  confer  title  to  the  portion  so  actu- 
ally occupied.43  It  is  immaterial  to  support  title  thus  claimed 
whether  there  be  a  deed  valid  in  form,  or  whether  there  be 
no  deed,44  and  the  party  in  possession  may  even  knew  that  his 
title  is  groundless,45  but  there  must  be  a  claim  of  title ;  46  an 

35  Laverty  r.  Moore,  33  X.  Y.  40  Wells  V.  Jackson  Manuf.  Co., 
658;    Farish    v.    Coon,    40    Cal.    33;        48  N.   H.   491. 

Grube     v.     Wells,     34     Iowa,     148;  41  Fugate   v.   Pierce,  49  Mo.   441. 

Wood  v.  Banks,   14  N.  H.   111.  42  Walsh    v.    Hill,    41    Cal.    571; 

36  Crary  v.  Goodman,  22  N.  Y.  Jackson  v.  Vermylyea,  6  Cow.  (N. 
170;   Hallas  v.  Bell,  53  Barb.  247;  Y.)   677. 

Pepper    V.   O'Dowd,    39   Wis.    538.  43  Dills   v.  Hubbard,  31    111.   328; 

37  Washburn   v.  Cutter,  17  Minn.       Doe  v.  Eslava,  11  Ala.  102. 

361.  44  Rannels    v.    Rannels,    52    Mo. 

38  Constructive      possession      has       108. 

been   denned  to  be  a   possession   in  45  Bogardus  v.  Trinity  Church,  4 

law,    without     possession    in     fact:  Sand.  Ch.    (N.  Y.)    033;  Jackson  V. 

Bodges   v.  Eddy,  38  Vt.  327;    Wei-  Wheat,  18  Johns.  40. 

born   v.   Anderson,   37   Miss.    155.  16  Eumbert  v.  Trinity  Church,  24 

39  Brooks  V.  Bruyn,  18  111.  539;  Wend.  587;  Rannels  v.  Rannels,  52 
Crispen  v.  Hannavan,   50  Mo.   536.  Mo.  108. 


'   688  ABSTRACTS    OF    TITLE. 

assertion  of  paramount  right ;  47  and  there  must  be  actual  oc- 
cupancy measured  by  a  distinct,  visible  and  marked  possession.48 
Permissive  user  can  never,  by  any  lapse  of  time  and  even  though 
continuous  and  exclusive,  ripen  into  a  title  to  the  fee,  nor  when 
the  original  entry  was  by  consent  of  the  owner,  and  no  adverse 
claim  of  ownership  has  been  asserted.49 

§  579.  Naked  Possession  without  claim.  "  Squatters " 
or  intruders  upon  lands  acquire  no  rights  by  reason  of  their 
possession,  as  the  gist  of  every  adverse  holding  is,  that  it  is  ac- 
companied by  a  claim  of  right,  and  a  mere  trespass  can  never 
ripen  into  a  right,  so  as  to  set  the  statute  in  motion,  no  matter 
how  long  continued ;  50  nor  will  occupation  by  mistake  or  igno- 
rance suffice  to  constitute  an  adverse  holding,51  although  upon 
this  point  there  is  much  confusion  in  the  authorities.  But  an 
entry  by  one  without  color  of  title,  or  claim  of  right,  may  sub- 
sequently become  adverse  by  his  acquiring  and  asserting  a  claim 
of  title ;  and  the  statute  will  begin  to  run  from  the  time  of  such 
assertion.52 

§  580.  Tacking.  When  several  adverse  claimants  unite 
their  several  possessions  into  one  continuous  term,  this  is  called 
"  tacking."  Where  there  are  several  successive  adverse  claim- 
ants, the  last  one  may  tack  the  possession  of  his  predecessors  to 
his  own,  so  as  to  make  a  continuous  adverse  holding  for  the 

4 T  Howard    v.    Howard,    17    Barb.  statute:      Baker  v.   Hale,   6   Baxter 

285;    Jackson    v.    Johnson,    5    Cow.  (Tenn. ),   46. 
74;  Bowman  v.  Lee,  48  Mo.  335.  51  Thomas  v.  Babb,  45  Mo.  384; 

48  Corning  v.  The  Troy,  etc.,  Farish  v.  Coon,  40  Cal.  33;  Grube 
Factory,  44  N.  Y.  577;  Fugate  V.  V.  Wells,  34  Iowa,  148;  Dow  v.  Mc- 
Pierce,  49  Mo.  441.  Kenney,     64     Me.     138.      The    text 

49  Indianapolis,  etc.,  R.  R.  Co.  v.  states  the  generally  received  doc- 
Ross,  47  Ind.  25;  Cooper  v.  Mc-  trine  but  the  cases,  in  many  in- 
Bride,  4  Houst.  (Del.)  461;  Bedell  stances,  make  some  fine  distinctions, 
V.  Shaw,  59  U.  Y.  46;  Hudson  v.  and  the  authorities  are  not  in  full 
Putney,  14  W.  Va.  561.  Compare  accord  with  respect  to  the  rights 
Ford  v.  Holmes,  61  Ga.  419.  acquired   by   one  who   encloses   and 

50  Thompson  v.  Pioche,  44  Cal.  occupies  land  by  mistake.  See 
508;  Nowlin  V.  Reynolds,  25  Gratt.  Warvelle  on  Ejectment,  §  440,  et 
(Va.)  137.  Nor  can  the  successive  seq.  for  a  full  discussion  and  col- 
possession    of,  trespassers    be    con-  lected  cases. 

nected    to    make    the    bar    of    the  52  Hamilton  v.  Wright,  30  Iowa, 

480. 


ADVEESE    TITLE.  689 

statutory  period,  provided  there  is  a  privity  of  possession  be- 
tween such  occupants.53  Such  privity  may  arise  from  a  parol 
bargain  and  sale  of  the  possession  of  the  land,  followed  by  de- 
livery thereof,  as  well  as  by  a  formal  conveyance  from  one  occu- 
pant to  the  other.54  Actual  possession  by  prior  occupants  claim- 
ing title,  although  having  no  color  of  title,  will  always  avail  a 
subsequent  occupant  under  color  of  title,  claiming  under  such 
prior  occupants,  in  making  out  a  possessory  title  in  himself.55 
The  element  of  continuity  must  appear,  however,  and  several 
successive  but  unconnected  disseizins  or  adverse  possessions, 
though  amounting  in  the  aggregate  to  twenty  years,  or  such 
other  period  as  the  statute  may  prescribe,  can  not  be  tacked 
together  to  make  a  continuous  possession.56 

§  581.  Possession  as  Notice.  Possession,  while  it  may 
not  be  "  nine  points  of  the  law,"  always  has  been,  and  will 
doubtless  ever  continue  to  be,  prima  facie  evidence  of  the  high- 
est estate  in  land,  to  wit,  a  seizin  in  fee,57  and  when  open, 
notorious  and  visible,  it  has  always  been  regarded  as  afford- 
ing constructive  notice  to  others  of  the  occupant's  title  and 
equities.58  For  this  reason,  counsel,  in  framing  an  opinion 
of  title,  should  always  direct  the  attention  of  his  client  to  the 
rights  of  the  person  in  possession,  if  any,  or  suggest  that  an 
inquiry  in  pais  be  made  as  to  present  occupancy. 

§  582.  Who  May  Acquire  Adverse  Title.  One  who 
enters  into  possession  of  land  in  subordination  to  the  title  of 

53  Shuffleton  V.  Nelson,  2  Sawyer  right:  Teabout  V.  Daniels,  38  Iowa, 
(C.    Ct.),    540;    Haynes    V.    Board-       158. 

man,   119   Mass.   414;   Alexander  v.  56  Shuffleton  v.  Nelson,  2  Sawyer 

Stewart,    50    Vt.    87;    MeNeeley    V.  (C.  Ct.),  540;  Marsh  v.  Griffin,  53 

Langan,  22  Ohio  St.   37.  Ga.   320;    Pegues  V.  Warley,    14   S. 

54  Shuffleton  17.  Nelson,  2  Sawyer  C.  180. 

(C.  Ct.),  540;  Kruse  v.  Wilson,  79  57  Gulf    R.    R.    Co.    v.    Owen,    8 

111.  233;  Weber  V.  Anderson,  73  111.  Kan.  409. 

439.  58  Redden  v.  Miller,  95   111.   336; 

55  Day  v.  Wilder,  47  Vt.  584.  Pinney  v.  Fellows,  15  Vt.  525 ;  Per- 
This  has  been  held  to  be  the  ease  kins  v.  Swank,  43  Miss.  349;  Hop- 
of  one  who  held  as  heir  of  one  wbo  pin  v.  Doty,  25  Wis.  573;  O'Rourke 
held  adversely  under  mere  claim  of  V.   O'Connor,   39   Cal.   442. 

44 


\ 


690  ABSTRACTS    OF    TITLE. 

another  is  estopped  from  denying  that  title,  while  he  holds 
actually  or  presumptively  under  it ;  this  is  a  fundamental  rule 
of  universal  observance.59  Yet  a  trustee  may  disavow  and  dis- 
claim his  trust ;  60  a  tenant  the  title  of  his  landlord,  after  the 
expiration  or  surrender  of  his  lease;  61  a  purchaser  the  title  of 
his  vendor,  after  the  breach  of  his  contract  by  the  latter;  and 
a  tenant  in  common,  the  title  of  his  co-tenant ;  and  drive  the 
respective  owners  and  claimants  to  their  action  of  ejectment 
within  the  period  of  the  statute  of  limitations.  In  like  man- 
ner one  who  has  possession  of  land  under  an  agreement  to  pur- 
chase, which  contemplates  a  continuing  right  of  possession, 
while  the  contract  is  being  performed,  and  an  absolute  right  of 
possession  by  virtue  of  its  performance,  may,  on  performance, 
deny  the  title  of  the  vendor ;  and  thereafter  his  possession  will 
be  adverse.62 

A  grantor  remaining  in  possession  would  seem  to  be  effectu- 
ally estopped  by  the  covenants  of  his  deed,  and  such  has  been 
held  to  be  the  law,63  yet  in  a  number  of  instances  a  grantor 
who  conveys  by  quit-claim  deed  only,  by  remaining  in  posses- 
sion of  the  property  and  asserting  a  hostile  claim,  has  been 
permitted  to  acquire  a  title  against  his  grantee  by  virtue  of  the 
statute  of  limitations ;  64  while  some  courts  have  even  held  that 
a  grantor  with  warranty  may,  subsequent  to  the  delivery  of  his 
grant,  originate  an  adverse  possession,  and  is  not  estopped  from 
asserting  the  same  by  his  covenant  of  warranty.65  In  any  event 
the  possession  of  the  vendor  cannot  be  ignored  even  though  he 

59  Wilson  v.  James,  79  N.  C.  262;  Stark  v.  Starr,  1  Sawyer  (C. 
349;  Clarke  v.  Clarke,  51  Ala.  498;  Ct.),  15.  The  executed  contract 
Hatch  v.  Bullock,  57  N.  H.  15.  then  becomes  a  sale  and  not  merely 

60  Jamison  v.  Perry,  38  Iowa,  14.  an  agreement  to  purchase:      Ridge- 

61  Nellis    v.    Lathrop,    22    Wend.  way  v.  Holliday,  59  Mo.  444. 

(N.  Y.)    121;  Mattis  V.  Robinson,  1  63  Van  Keuren   v.   R.   R.   Co.,   38 

Neb.  5.     Or  by  rescinding  the  lease  N.  J.  L.   165. 

and  claiming  a  new  title:     Weich-  64Dorland   V.    Magilton,    47    Cal. 

selbaum    v.    Curlett,    20   Kan.    709;  485. 

as  where  the  tenant  purchased  the  65  Sherman    v.    Kane,    86    N.    Y. 

property  at  tax  sale.  57. 
62Catlino    v.    Decker,    38    Conn. 


ADVERSE    TITLE.  691 

may  have  conveyed  with  warranty,  and  where  he  continues 
to  occupy  the  premises  all  persons  acquiring  title  from  his 
grantee  are  chargeable  with  notice  of  the  claims  of  the  grantor 
and  of  his  equitable  rights.66 

§  583.  Remainder-men.  It  is  a  well  established  prin- 
ciple that  the  statutes  of  limitation  do  not  commence  to  run 
until  the  right  of  action  or  right  of  entry  accrues.  It  therefore 
does  not  commence  to  run  against  a  remainder-man  until  the 
termination  of  the  precedent  estate,67  when  the  deed  creating, 
such  prior  estate  is  of  record,  or  the  party  in  possession  has 
notice  of  its  existence.  But  when  a  party  has  had  the  unin- 
terrupted and  undisputed  possession  of  land  for  the  statutory 
period,  and  during  that  time  has  paid  all  taxes  legally  assessed 
thereon,  and  has  had  neither  actual  nor  constructive  notice  of 
a  prior  unrecorded  conveyance  creating  a  life  estate  with  a 
remainder  over  to  others,  such  possession  and  payment  of  taxes 
by  him  will  be  a  bar  to  a  recovery  by  such  remainder-man, 
even  though  the  full  period  of  the  statute  has  not  elapsed 
since  the  termination  of  the  life  estate,  and  notwithstanding 
the  fact,  that  the  party  so  asserting  title  is,  by  the  terms  of 
such  undisclosed  deed,  made  a  tenant  in  common  with  such 
remainder-man.68 

§  58-4'.  Reversioners.  As  against  a  reversioner  there  can 
be  no  adverse  possession.  It  can  only  exist  against  one  entitled 
to  possession.69 

§  585.  Tenants  in  Common.  The  general  rule  is,  that 
the  statute  of  limitations  does  not  run  as  between  tenants  in 
common,  for  the  reason,  in  part,  that  the  possession  of  one,  in 
contemplation  of  law,   is  the  possession  of  all,'0    and  this   is 

no  White   v.    White,    89    111.    460;  69  Clark  v.  Huges,  13  Barb.   147; 

Ford  v  Marshall,  107  HI.  136.  Gernet    v.    Lynn,    31     Pa.    Si.    94; 

67  Christie  r.  Gage.  71  X.  Y.  ISO;  Raymond  r.  Haider.  2  Cush.(Mass.) 
Dugan  v.  Follett,  100  111.  581;  Fo-  209.  The  text  slates  the  general 
gal  V.  Perm,  10  Bos.  (X.  Y.)  100;  rule  but  exceptional  eases  may  at 
Carpenter    v.    Denoon.    29    Ohio    St.  times  militate  against   it. 

379;  Gernet  V.  Lynn,  31   Pa.  St.  94.  70  Dugan   V.   Follett,    100   111.  581; 

68  Dugan  t\  Follett,   100  111.  581.       Ang.    on    Lim.    §    422;    Florence    v. 


(592  ABSTRACTS    OF    TITLE. 

especially  so  when  all  the  parties  derive  title  through  the  same 
deed  or  conveyance.71  But  if  a  tenant  in  common  conveys 
the  whole  tract,  by  a  deed  which  purports  to  include  the  entire 
estate,  his  grantee,  if  in  possession,  will  hold  adversely  to  the 
others,72  while  the  possession  of  one  of  several  tenants  may 
become  adverse,  when  his  acts  amount  to  an  exclusion  of  his 
co-tenants.73 

§  586.  Persons  under  Disability.  A  special  exception 
has  been  made  by  the  statute  in  case  of  infants,  insane  persons, 
and  persons  imprisoned  on  a  criminal  charge  for  any  period 
less  than  life,74  and  their  rights  in  land  are  not  only  protected 
during  the  period  of  disability,  but  for  a  certain  period  after 
the  disability  has  ceased,  or  after  the  death  of  a  person  dying 
under  disability.  This  period  is  usually  fixed  at  ten  years, 
•but  the  statutes  vary  in  this  particular.  It  will  be  seen,  there- 
fore, that  before  any  positive  assurance  can  be  entertained 
that  a  title  has  become  perfect  by  adverse  possession  or  pre- 
scriptive user,  it  must  appear,  not  only  that  the  property  has 
been  adversely  held  for  the  requisite  time,  but  also  that  it  has 
been  held  against  some  person  against  whom  a  prescriptive 
title  can  be  acquired.75 

But  unless  provided  for  in  express  terms  this  statutory 
exception  does  not  have  the  effect  of  suspending  the  operation 
of  the  statute  of  limitations  after  it  has  legitimately  com- 
menced to  run,  and  hence,  if  an  adverse  possession  commence 
in  the  lifetime  of  an  ancestor,  it  will  continue  to  run  against 

Hopkins,  46   N.   Y.   182;   McQuiddy  and    disseizin    may    not    be    in    all 

V.    Ware,    67    Mo.    74;    Aquirre    v.  particulars  identical,  their  effect  is 

Alexander,  58  Cal.  21.  the    same    for   the    purpose    of    ter- 

71  Dungan  V.  Follett,  100  111.581.  minating    a    tenancy    in    common: 

72  Clapp   V.   Bromagham,   9   Cow.  Millard  v.  McMullen,  68  N.  Y.  345. 
530;  Florence  V.  Hopkins,  46  N.  Y.  74  Married  women  are  sometimes 
182;    Rigg  v.   Fuller,   54   Ala.    141;  included  in  this  exception. 
Faulke  V.  Bond,  41  N.  J.  L.  527.  75Melvin    v.    Whiting,    13    Pick. 

73  Florence  v.  Hopkins,  46  N.  Y.  (Mass.)  188;  Arbuckle  V.  Ward,  29 
182.      Though     adverse     possession  Vt.  55. 


ADVERSE    TITLE.  693 

the  heir,  notwithstanding  any  existing  disability  on  the  part  of 
the  latter  when  the  right  accrues  to  him  or  her.76 

§  587.  Married  Women.  In  the  absence  of  evidence  to 
the  contrary  the  presumption  of  law  is,  that  the  possession  of 
husband  and  wife  in  the  joint  occupancy  of  land  as  a  home 
is  the  possession  of  the  husband,  but  this  presumption  may  be 
rebutted  by  a  showing  that  the  woman  took  and  held  possession 
in  her  own  right  and  so  continued  to  hold  during  the  statutory 
period  of  limitation.  If  such  is  the  case,  her  title,  when  once 
vested,  canot  be  affected  by  any  recovery  in  ejectment  against 
the  husband  nor  by  any  of  his  acts  or  declarations  during  the 
joint  occupation.77 

§  588.  Adverse  Rights  as  Against  the  State.  It  is 
matter  of  common  knowledge  that  statutes  of  limitation  do  not 
run  against  the  State.  That  no  laches  can  be  imputed  to  the 
king,  and  that  no  time  can  bar  his  rights,  was  the  maxim  of  the 
common  law,  and  was  founded  on  the  principle  of  public  policy, 
that,  as  he  was  occupied  with  the  cares  of  government  he  ought 
not  to  suffer  from  the  negligence  of  his  officers  and  servants. 
The  principle  is  applicable  to  all  governments  which  must  nec- 
essarily act  through  numerous  agents,  and  it  is  essential  to 
a  preservation  of  the  interest  and  property  of  the  public.79  It 
is  upon  this  principle  that  in  this  country  the  statutes  of  a 
State  prescribing  periods  within  which  rights  must  be  prose- 
cuted are  not  held  to  embrace  the  State  itself,80  unless  it  is 
expressly  included,  or  the  mischiefs  to  be  remedied  are  of  such 
a  nature  that  it  must  necessarily  be  included.  As  legislation 
of  a  State  can  only  apply  to  persons  and  things  over  which  the 
State  has  jurisdiction,  the  United  States  are  also  necessarily 
excluded  from  the  operation  of  such  statutes.81  But  the  State 
may  submit  itself  to  the  operation  of  the   statute,   in  which 

76  Fleming    v.    Griswold,    3    Hill  79  Gibson   v.    Chouteau,    13   Wall. 
(N.  Y.),  85;   Jackson  v.  Moore,   13       92. 

Johns.    (N.  Y.)    513;  Oates  V.  Beck-  80  Gardiner    v.    Miller,    47    Cal. 

worth,  112  Ala.  356;  White  r.  Claw-  570. 

son,  79  Ind.  192.  si  United   States  V.  Hoar,   2  Ma- 

77  Collins  v.   Lynch,    157   Pa.  St.  son,    312;     People    v.    Gilbert,    18 
246.  Johns.  228. 


694  ABSTKACTS    OF    TITLE. 

event  the  same  rule  as  to  ouster  and  possession  will  obtain 
where  the  State  is  the  owner  as  would  apply  in  the  case  of 
private  parties.82 

As  adverse  possession  cannot  run  against  the  government,  it 
logically  follows  that  the  claim  can  not  be  asserted  against  a 
grantee  of  the  government,  and  mere  possession  of  government 
lands,  though  open,  exclusive  and  uninterrupted  for  twenty 
years,  creates  no  impediment  to  its  recovery  by  the  government, 
or  by  one  who  within  that  period  receives  a  conveyance  from 
the  government.83 

§  589.  Effect  of  Adverse  Possession.  When  title  to 
land  has  been  perfected  by  twenty  years'  adverse  possession  and 
enjoyment,  it  becomes  equally  as  strong  as  one  obtained  by 
grant,84  and  creates  in  the  person  so  asserting  same,  if  otherwise 
unimpaired,  a  legal  title  to  the  fee  which  is  effective  for  all 
purposes.85  In  many  States,  ten,  seven  or  even  five  years' 
uninterrupted  possession  under  color  of  title,  coupled  with  acts 
of  ownership,  payment  of  taxes,  etc.,  will,  under  the  operation 
of  the  statute,  cure  defects  in  the  instruments  under  which 
the  entry  was  made,  and  bar  all  actions  for  the  recovery  of 
the  land,  thus  securing  to  the  occupier   an  indefeasible  title 

82  See,  Schneider  r.  Hutchinson,  claimed  same  by  virtue  of  a  selee- 
35  Oreg.  253 ;  St.  Paul  v.  By.  Co.,  tion  by  the  State  in  lieu  of  section 
45  Minn.  396 ;  Green  r.  Irving,  54  sixteen,  but  to  prove  which  no  pri- 
Miss.    450.     Consult    local    statutes.  mary    evidence    could    be    adduced. 

83  Oaksmith  v.  Johnson,  92  U.  S.  See  Hedrick  v.  Hughes,  15  Wall. 
343.     But  while  it  is  true  that  mere  (U.S.)   123. 

lapse    of   time    and    continuance    of  84  Sherman  v.  Kane,  86  N.  Y.  57; 

possession      without      pretense      of  Schneider    v.    Botsch,    90    111.    577; 

title,   or    under   pretense   of   a   void  Bowen  v.  Preston,  48  Ind.  367.     The 

title,  can  not  be  set  up  against  the  presumption  of  a  grant  from  adverse 

government,   yet   long  possession   is  possession  continued   for  the  statu- 

nevertheless    a    strong    weapon    of  tory   term,   is   not   founded   on   any 

defense    in    the   hands    of   one    who  probability  of  an  actual  grant,  but 

cau  show  reasonable  proof  that  the  is    a    positive    rule    established    for 

title    of    the    government    has    been  quieting  titles:    Melvin  v.  Waddell, 

parted    with    and   has    devolved    on  75  N.  C.  361. 

him;    so  held,   where  a   patent   had  85  Covington  v.  Stewart,  77  N.  C. 

been   issued   to   one,    of   lands   then  148. 
in     possession     of     another,     who 


ADVERSE     TITLE.  695 

in  law,  no  manor  how  defective  the  title  of  the  grantor,  or 
the  instrument  of  conveyance,  may  have  been.86  This  circum- 
stance, in  cases  whore  no  disability  is  shown  to  exist,  is  often 
of  vital  importance  in  passing  titles  otherwise  defective  and 
lays  at  rest  a  vast  number  of  questions  that  frequently  require 
long  and  laborious  investigation  to  properly  solve.  The  statu- 
tory requisites  relative  to  possession  and  perfection  of  title 
must  be  fully  ascertained,  however,  either  by  record  evidence 
or  otherwise  before  the  bar  of  the  statute  can  be  relied  on. 

§  590.  Proofs  to  Support  Title  by  Adverse  Possession. 
When  the  title  offered  is  adverse  in  its  character,  counsel  should 
seek  by  inquiries  in  pais  to  demonstrate  its  validity  before 
passing  same.  The  highest  and  best  record  proof  that  could 
be  adduced  would  be  the  judgment  of  some  court  of  competent 
jurisdiction,  either  in  an  action  of  ejectment  or  a  suit  to  quiet 
the  title.  A  deed  purporting  to  convey  the  title  is  next  in  order, 
while  payment  of  taxes  and  the  like  still  further  tend  to 
strengthen  it.87  Many  of  the  facts  which  go  to  confirm  an 
adverse  title  are  not  capable,  however,  of  affirmative  showing 
in  an  abstract,  and  evidence  concerning  them  must,  from  the 
nature  of  the  title,  be  disclosed  aliunde.88 

In  an  examination  of  title  a  much  greater  degree  of  strictness 
in  the  proof  should  be  insisted  upon  than  would  be  necessary 
to  support  a  claim  in  a  legal  proceeding.  In  the  latter  case 
affirmative  evidence  is  usually  all  that  is  required,  but  in  the 
former,  inasmuch  as  there  is  no  one  to  present  negative  evi- 

86  Ryan  0.  Kilpatrick.  66  Ala.  of  taxes  for  a  fixed  period  of  years, 
332 ;  Hunton  v.  Nichols,  55  Tex.  coupled  with  possession  and  color 
217;  Stark  r.  Brown,  101  111.  395;  of  title,  will  by  statute,  in  some 
Harris  r.  McGovern.  99  U.  S.  161;  States,  confer  a  title  commensurate 
Moingona  Coal  Co.  r.  Blair.  51  with  the  deed  under  which  entry 
Iowa,   447 ;    Jones    r.    Patterson,   62  was  made. 

Ga.  527.  88  Consult  Turner  V.  Hall,  60  Mo. 

87  Paying   taxes    on    land    is    not  271 ;    Howland    V.    Cemetery   Assoc, 
evidence  of  possession,   but   goes  to  66  Barb.   366;    Soule  V.   Barlow.   4S 
show    a    claim    of    title:       Paine    r.  Vt.   132;  Harnage  V.  Berry.  43  Tex. 
Hutchins,    49    Vt.    314;    Brown    r.  567;    Kerr   V.   Hitt,    75   111.   51. 
Rose,  48   Iowa,  231.     But   payment 


696  ABSTRACTS    OF    TITLE. 

dence,  counsel  should  require  the  person  asserting  the  title 
to  satisfactorily  show  that  no  evidence  of  this  kind  exists ;  as, 
that  the  claim  is  not  liable  to  be  defeated  by  the  infancy  of 
heirs  of  the  servient  estate,  or  the  lunacy  or  disability  of 
parties  who  might,  were  it  not  for  such  disability,  be  able  to 
establish  a  claim. 


CHAPTER  XXXII. 


OPINIONS  OF  TITLE. 


§  591. 

Perusing  the  abstract. 

§  607. 

Clouds  upon  title. 

592. 

Note    taking. 

608. 

Inquiries  in  pais. 

593. 

Examination   of   the   muni- 

609. 

Continued     —     Mechanics' 

ments. 

liens. 

594. 

Examination  of  deeds. 

610. 

Continued  —  Easements  and 

595. 

Examination    of    legal    pro- 

Servitudes. 

ceedings  and  judgments. 

611. 

Continued  —  Homesteads. 

596. 

Marginal  notes  and  requisi- 

612. 

Printed  copies. 

tions. 

613. 

Framing  opinions. 

597. 

Continued. 

614. 

Opinions  of  title. 

598. 

Answers  to  requisitions. 

615. 

Continued  —  Certificates    of 

599. 

Affidavits  of  pedigree. 

title. 

600. 

Analysis  of  title. 

616. 

Opinions  based  upon  the  ab- 

601. 

Analytical  chains. 

stract. 

602. 

Sketch    maps. 

617. 

Perspicuity  of  expression. 

603. 

Preservation  of  memoranda. 

618. 

Oral    opinions. 

604. 

Passing  the  title. 

619. 

Liability       for       erroneous 

605. 

What    constitutes    a    valid 

opinions. 

title. 

620. 

Conclusion. 

606. 

Flaws. 

§  591.  Perusing  the  Abstract.  No  specific  rules  can 
be  laid  down  in  regard  to  the  perusal  of  an  abstract  by  counsel, 
as  this  is  something  that  depends  largely  on  the  habits  and 
professional  methods  of  the  individual.  "  The  perusal  should, 
if  the  length  of  the  abstract  will  permit  of  it,"  says  Sugden,1 
"  be  finished  at  one  sitting,  although  any  difficult  point  of  law, 
the  whole  bearing  of  which  is  not  ascertained,  may  properly 
be  reserved  for  further  and  separate  consideration ;  "  and  this 
perhaps,  will,  to  the  majority  of  the  profession,  be  found  to 
be  the  method  best  calculated  to  produce  satisfactory  results. 
"  It   may   sometimes   be   useful,"    says   the    same    author,2    to 


i  Sugd.  on  Vendors,   10. 
2  Ibid. 


697 


698  ABSTEACTS    OF    TITLE. 

glance  over  the  abstract  in  the  first  place,  in  order  to  obtain  a 
general  view  of  the  title,  and  experience  will  rapidly  point 
out  when  a  subsequent  part  of  the  abstract  may  be  looked  into 
advantageously  before  its  proper  turn;  but,  speaking  generally 
an  abstract  should  be  perused  but  once,  and  that  once  effectu- 
ally. The  party  should  never  pass  on  until  he  thoroughly 
comprehends  what  he  has  already  read;  the  advancing  in  a 
difficult  title,  in  order  to  comprehend  what  you  have  passed 
and  do  not  understand,  often  leads  to  insurmountable  diffi- 
culties." The  experience  of  the  writer  would  indicate  that  the 
remarks  just  quoted  are  not  without  merit,  but  the  difference  in 
the  plan  of  compilation,  as  well  as  the  effect  of  the  instruments 
with  reference  to  registration,  notice,  and  other  incidentals  not 
common  to  the  English  abstract,  renders  necessary  a  somewhat 
different  course  from  that  pointed  out  by  Mr.  Sugden. 

The  writer  suggests,  that  whether  the  abstract  be  long  or 
short,  or  whether  the  title  be  simple  or  complicated,  a  general 
perusal,  in  order  to  obtain  a  preliminary  view  should  first  be 
made.  This  perusal  is  only  to  establish  the  fact  of  an  apparent 
chain  of  title  from  its  source,  the  government,  or  from  some 
person  proposed  in  whom  the  title  is  assumed  to  have  been 
vested.  To  assist  in  arriving  at  a  correct  estimate,  an  analysis 
of  the  abstract  must  always  be  made  in  intricate  cases,  and  such 
a  course  will  be  found  helpful  in  every  case.  Having  estab- 
lished the  fact  of  apparent  title  extending  in  unbroken  se- 
quence from  the  initial  point  to  the  person  in  whom  it  is  last 
asserted,  a  critical  review  of  every  remove 3  must  then  be 
made  to  determine  its  effect  and  validity,  in  much  the  same 
manner,  though  not  for  the  same  purpose,  as  the  English  coun- 
sel examines  the  muniments.  All  defects,  whether  of  form  or 
substance,  are  noted  upon  the  analysis  just  mentioned,  together 
with  notes  of  discrepancies,  objections  and  requisitions  for  fur- 
ther information.     It  would  be  unwise,  however,  to  lay  down 

3  For  want  of  a  better  name,  each  all  numbered  seriatim  from  the  De- 
link in  the  chain,  whether  by  deed,  ginning,  and  referred  to  by  number 
will,  mortgage,  lease,  etc.,  is  called  whenever  occasion  calls  for  refer- 
a  "  remove,"   and   the    removes   are  ence. 


OPINIONS    OF    TITLE.  699 

any  unvarying  rule  for  a  matter  of  this  kind.  Men's  minds 
are  not  alike,  and  the  methods  that  insure  the  best  results  in 
the  case  of  one,  may  be  entirely  inadequate  in  the  case  of  an- 
other. The  counsel's  personal  professional  habits  will,  after 
all,  be  the  best  guide,  but  should  he  have  no  decided  habits  of 
professional  thought  or  study,  it  is  believed  the  course  indicated 
in  this  chapter  will  enable  him  to  form  better  opinions,  and  ar- 
rive at  more  satisfactory  conclusions,  than  can  be  attained  by 
any  haphazard  or  undefined  methods. 

§  592.  Note  Taking.  The  real  utility  of  note  taking,  as 
an  aid  to  study  or  investigation  in  any  pursuit,  must  ever  re- 
main an  open  question,  yet  it  can  not  be  denied  that  in  the 
examination  of  complicated  titles  the  use  of  notes  is,  in  a  ma- 
jority of  cases,  of  undoubted  benefit,  as  well  in  unraveling  a 
tangled  chain  as  in  framing  subsequent  opinions.  In  the  judg- 
ment of  some  writers,  counsel  will  find  it  the  best  and  surest 
method  of  arriving  at  a  just  conclusion,  to  trust  to  his  view  of 
the  title  on  the  face  of  the  abstract  itself,  without  incumbering 
himself  with  or  relying  upon  notes,4  they  being  regarded  as  un- 
necessary details  which  often  serve  to  distract  the  attention.5 
Properly  and  methodically  used,  however,  notes  will  usually  be 
found  an  important  aid,  while  in  complicated  cases  they  appear 
almost  indispensable.     Particularly  is  this  true  in  making  an 

4  Sugd.  on  Vendors,  10  (Am.  "  to  remember  a  thing,  the  last 
Ed.).  method  available  is  to  commit  it  to 

5  The  prejudice  which  exists  paper.  This  is,  with  me,  to  put  it 
among  many  distinguished  mem-  out  of  the  jurisdiction  of  the  mem- 
bers of  the  profession  against  the  ory."  This  prejudice,  however,  is 
use  of  notes  as  an  aid  to  study  or  mostly  in  regard  to  note-books  as 
investigation,  refers  more  particu-  a  means  of  assisting  the  memory, 
larly  to  common-placing  and  abridg-  and  the  author  last  quoted  admits 
ing,  and  though  this  was  recom-  the  utility  of  notes  taken  by  a 
mended  by  the  earlier  writers,  nota-  lawyer  in  looking  up  a  question  on 
bly  Fulbeck  (1599),  Sir  Matthew  which  to  advise  a  client,  or  refer- 
Hale  (1688),  and  others  of  later  ences  which  will  enable  him,  if  liti- 
periods,  as  Mr.  Hoffman,  in  our  own  gation  is  afterward  carried  on,  to 
time  and  country,  yet  modern  writ-  go  on  with  the  case  without  a  fresh 
era  like  Mr.  Warren,  Mr.  Bishop,  search.  See  Bish.  First  Book  of  the 
etc.,  strongly  condemn  the  practice.  Law,  §  423. 

Mr.   Bishop  says  that  if  he  wishes 


700  ABSTRACTS    OF    TITLE, 

analysis  of  title,  where  the  interest  of  every  person  connected 
with  the  title,  or  possessing  any  rights  in  the  land,  must  be  as- 
certained at  every  remove,  and  notwithstanding  the  fact  that  so 
high  an  authority  as  Mr.  Sugden  condemns  their  use,  the 
American  counsel  will  find  that  in  a  majority  of  instances  he 
must  resort  to  them  or  run  the  risk  of  overlooking  some  impor- 
tant matter  in  making  up  his  final  estimate  of  title  and  framing 
his  opinion. 

§  593.  Examination  of  the  Muniments.  In  addition  to 
the  general  survey  of  title  from  all  the  instruments  and  proceed- 
ings, each  particular  step  must  be  examined  technically  and 
critically,  and  its  own  sufficiency  or  insufficiency  passed  upon. 
Under  the  English  system  this  would  consist  of  a  comparison 
of  the  original  instruments  with  the  abstract,6  but  this  task  un- 
der the  American  system,  is  supposed  to  have  been  satisfactorily 
performed  by  the  abstract  maker,  and  all  that  counsel  is  ex- 
pected to  do  is  to  see  that  the  instruments  as  they  are  presented 
are  sufficient  in  form  and  substantially  correct.  This  task  is 
the  most  arduous  part  of  the  examination,  for  the  sufficiency 
of  every  instrument  and  proceeding  must  not  only  be  investi- 
gated with  respect  to  itself  but  frequently  with  reference  to  nu- 
merous other  instruments  in  the  chain  and  sometimes  in  con- 
nection with  matters  not  disclosed  by  the  abstract. 

Thus,  a  deed,  by  the  donee  of  a  power  under  a  will  to  dispose 
of  the  property  by  last  will  and  testament,  he  having  also  the 
use  of  the  land  for  life,  presents  two  distinct  phases.  In  the 
first  place  the  instrument  itself  must  be  considered  with  refer- 
ence to  its  formal  parts;  its  date;  registration;  estate  conveyed 
—  a  most  vital  point ;   execution,   etc.      Viewed  only  in  this 

6  The  duty  of  a  solicitor  in  exam-  execution,  attestation,  indorsed  re- 
ining an  abstract  is  thus  summed  ceipts,  registration,  stamps,  etc.; 
up  by  Mr.  Dart.  He  says:  "The  and  4thly,  that  there  are  no  in- 
object  of  the  examination  is  to  as-  dorsed  notices,  nor  any  circum- 
certain,  1st,  that  what  has  been  stances  attending  the  mode  of  ex- 
abstracted  is  correctly  abstracted;  ccution,  attestation,  etc.,  etc.,  cal- 
2ndly,  that  what  is  omitted  is  culated  to  excite  suspicion."  Dart 
clearly  immaterial;  3dly,  that  the  on  Vendors,  381. 
documents    are   perfect   as    respects 


OPINIONS    OF    TITLE.  ^01 

light  it  may  be  insufficient  as  failing  to  disclose  the  intention  of 
the  donee  to  execute  the  power,  and  though  purporting  to  con- 
vey the  fee,  conveys  only  the  life  estate  of  the  grantor.7  In  the 
second  place,  the  deed  must  be  construed  in  connection  with  the 
will  granting  the  power,  and  its  legal  sufficiency  considered  in 
relation  to  such  will,  presuming  that  in  form  it  is  unimpeach- 
able and  fully  discloses  the  power  and  evinces  the  intention  of 
the  grantor  to  work  under  it.  Xow  it  is  a  vexed  question  as 
to  whether  it  is  possible  for  the  donee  of  a  power  to  make  any 
disposition  of  the  subject  of  the  power  save  in  the  manner  in- 
dicated in  the  instrument,  granting  same.8  An  important  ques- 
tion is  here  presented,  therefore,  and  upon  its  solution  depends 
the  validity  of  the  proffered  title.  The  donor  of  the  power  in- 
tended that  it  should  be  executed  by  the  will  of  the  donee;  he 
has  attempted  to  execute  it  by  deed.9  Here  counsel  must  -refer 
to  the  will  and  to  the  grant  of  the  power  therein,  and  the  two 
must  be  carefully  considered  in  relation  to  their  effect  upon  the 
title.  This  is  but  an  instance,  but  it  is  sufficient  to  illustrate 
the  matter  and  to  show  the  importance  of  this  branch  of  the 
examination  as  well  as  the  care  and  attention  that  must  be 
bestowed  upon  it. 

7  Dunning  v.  VanDusen,   47   Ind.  9  The  courts  in  England,  and  very 

423;   Jassey  v.  ^Yhite,  28  Ga.  295;  generally  in.  this  country,  have  de- 

and  see  Funk  v.  Eggleston,   92  111.  termined  that  when  a  power   is  to 

515.     In  order  to   execute  a   power  be  executed  by  will,   the   donor  in- 

it  is  not  absolutely  essential  that  a  tended  that  it  should  remain  under 

deed    should    recite    or    even    refer  the   contract  of  the   donee  "  to   the 

to  the   power,   where  it   was   mani-  moment    of    his    death."      And    the 

festly  the  intention  of  the  party  to  authorities  are  numerous,  and  uni- 

execute  the  power.     But  where  the  form,    in   enunciating  the   principle 

maker  has  an  estate  which  will  pass  that  the  donee  can  not  enlarge  and 

without    executing   the    power,    and  amplify  the  scope  of  the  power,  but 

the    instrument     is    silent    on    that  must    be    strictly   controlled    in    its 

point,  as  in  the  case  supposed,  the  execution  by  the  declared  intention 

law  will  presume  that  he  intended  of  the  donor;   and  that  a  power  1<> 

to  convey  such  estate  and  no  more:  be  executed  by  will  can  not  be  exe- 

See,  Pease  v.  Pilot  Knob  Iron  Co.,  cuted  by  deed,  and  equity   will  not 

49  Mo.  124.  relieve    if    the    attempt    is    made: 

8  See   §    392    for   a  discussion   of  Reid    r.    Shergold,    10    Ves.    (Eng.) 

this  subject.  370;   Wilks  v.  Burns,  t>0  Md.  (>4. 


702  ABSTRACTS    OF    TITLE. 

§  591.  Examination  of  Deeds.  It  is  not  proposed,  nor 
is  it  necessary,  to  recapitulate  all  that  has  preceded  relative 
to  the  formalities  or  legal  effect  of  instruments  and  proceed- 
ings offered  in  support  of  title,  hut  it  may  he  well,  at  this 
point,  to  briefly  call  the  attention  of  counsel  to  the  prominent 
features  thereof  as  they  are  presented  in  the  abstract.  After 
a  proper  inception  of  title  has  been  shown,  or  where  same  has 
been  satisfactorily  established  in  some  person  at  some  definite 
period,  either  by  assumption  or  investigation,  the  first  duty 
of  counsel  is  to  see  that  the  course  of  title  is  uninterrupted 
from  that  person  and  period.  For  this  purpose  he  should  ob- 
serve the  names  of  parties  and  dates  of  instruments  down 
through  the  entire  chain,  and  note  all  places  where  the  chrono- 
logical sequence  is  broken  or  in  inverse  order.  This,  with  a 
general  view  of  each  instrument,  constitutes  the  preliminary 
survey.  An  analysis  of  the  abstract,  if  it  be  long  or  the  title 
complicated,  must  now  be  made,  and  the  sufficiency  and  effect 
of  every  remove  noted  therein.  Again  returning  to  the  first 
instrument  he  should  read  the  same  carefully,  observing;  the 
following  points,  which,  for  greater  certainty,  .it  is  well  to  put 
interrogatively. 

The  parties:  are  they  properly  named  and  do  they  include 
all  who  by  the  initial  matters  are  shown  to  possess  title  or  in- 
terests ? 10  Have  they  all  executed  the  deed,  and  is  the  exe- 
cution correct  in  form  ?  Observe  in  this  connection  any  ap- 
parent differences  'in  the  orthography  of  names  as  shown  in 
prior  or  subsequent  conveyances,  and  in  case  such  differences 
appear,  make  a  requisition  for  further  information  disclosing 
identity.  See  that  correct  descriptio  personce  accompanies  the 
names  as  indicative  of  capacity,  domestic  relations,  etc.  Where 
one  conveys  alone,  no  clue  being  given  as  to  his  domestic  status, 
an  inquiry  as  to  marriage  can  never  be  safely  omitted.     In 

10  The  legal  effect  of  the  matters  ferred    to    the    various    heads,    and 

mentioned    in   this   section    have   all  subdivisions   under   which   they   will 

been  discussed  in  other  parts  of  the  severally  be  found  for  extended  dis- 

work    and    the    authorities    relating  cussions. 
thereto    given.      The    reader   is    re- 


OPINIONS    OF    TITLE.  703 

case  of  corporate  conveyances,  require,  if  necessary,  additional 
evidence  relative  to  the  power  of  the  corporation  to  receive, 
hold  and  convey,  as  well  as  to  show  proper  execution.  If  the 
deed  is  the  act  of  a  municipality  the  resolution  of  authority 
must  appear;  if  it  does  not  a  requisition  for  same  should  be 
made. 

The  estate :  what  estate  purports  to  be  conveyed  ?  If  the 
entire  estate,  observe  by  reference  to  prior  conveyances  what 
estate  is  held  by  the  gTantor,  for  he  can  convey  no  more  than 
he  possesses,  whatever  be  the  form  of  words  used.  Is  it  in- 
cumbered by  expressed  or  latent  liens  ?  Has  the  right  of  dower, 
in  a  proper  case,  been  relinquished  ?  Have  the  homestead 
rights  been  waived  ?  and  if  attempt  has  been  made  in  either 
case,  has  it  been  successfully  accomplished  ?  If  the  abstract 
fails  to  disclose  these  facts,  make  a  requisition  for  further 
information. 

The  property:  does  the  description  correspond  in  essential 
parts  to  the  caption  of  the  abstract,  or  to  the  subject  of  the 
examination  ?  Does  it  correspond  with  prior  conveyances  ? 
Observe  carefully  for  omissions  and  misdescription. 

The  covenants  are  not  essential  to  title,  and,  being  simply 
for  the  further  assurance  of  the  purchaser,  may  be  disregarded 
except  when  they  become  necessary  to  show  an  estoppel. 

The  conditions  are  important ;  observe  in  what  manner  they 
may  affect  title  by  reason  of  non-performance  or  breach.  Do 
they  disclose  a  possibility  of  divesture  of  title  at  some  future 
period,  or  confer  upon  the  grantor  contingent  reversionary 
rights  of  re-entry  or  forfeiture  ?  Do  they  create  a  conditional 
limitation  ?  If  the  deed  itself  is  the  result  of  prior  agreement, 
does  it  substantially  conform  to  such  prior  agreement  as  shown  \ 
This  inquiry  is  not  always  important,  but  may  become  so. 

The  dates :  compare  the  dates  respectively,  of  execution,  ac- 
knowledgment, and  registration.  Do  they  show  a  proper  cor- 
respondence ?  Compare  these  dates  with  those  of  prior  and 
subsequent  conveyances.  Tn  case  of  conflicting  titles  from 
the  same  source,  this  may  become  srery  important  in  the  solu- 
tion of  questions  depending  on  priority. 


704  ABSTRACTS    OF    TITLE. 

§  595.  Examination  of  Legal  Proceedings  and  Judg- 
ments. So  much  has  been  said  upon  this  subject  in  the  pre- 
ceding chapters  that  little  remains  without  indulging  in  repe- 
tition, yet,  as  it  has  long  been  customary  in  nearly  every  part 
of  the  country  to  look  solely  to  deeds  as  evidences  of  title,  it 
is  the  desire  of  the  writer  to  strongly  impress  upon  the  minds 
of  examiner  and  counsel  that  all  conveyances  resulting  from 
legal  proceedings,  aside  from  their  prima  facie  quality,  are 
valueless  as  evidence  without  proof  of  capacity  in  the  grantor, 
and  this  can  come  only  from  the  fact  of  jurisdiction  in  the 
court  pronouncing  the  judgment  or  decree.  Should  evidence 
of  this  fact  be  wanting,  a  requisition  must  be  made  for  fur- 
ther information  concerning  same,  and  in  no  case  should  a 
deed  made  in  pursuance  of  a  judicial  sale  be  passed  without 
full  proof  of  its  validity. 

Where  official  deeds  of  any  kind  are,  by  statute,  made  pre- 
sumptive evidence  of  their  own  validity  and  of  the  validity 
and  regularity  of  the  anterior  proceedings  upon  which  they 
rest,  and  counsel  relying  on  the  prima  facie  evidence  thus  pre- 
sented dispenses  with  proof  of  prior  regularity  and  jurisdic- 
tion, prudence,  as  well  as  fair  dealing,  would  suggest  that 
special  reference  to  such  facts  be  made  in  the  opinion,  that 
the  client  and  his  assigns  may  know  that  the  title  passed  is  a 
prima  facie  title  only,  and  has  not  been  demonstrated. 

In  the  preliminary  measures  to  all  execution  and  judicial 
sales  counsel  will  first  observe  that  the  proceeding  is  appar- 
ently regular  and  formal ;  this  is  not  vital,  but  may  in  some 
instances  suggest  an  inquiry  that  requires  answer.  Xext,  he 
should  observe,  the  parties:  do  the  names  in  process,  plead- 
ings and  judgment  correspond  ?  Has  there  been  a  personal 
appearance,  or  was  the  judgment  taken  on  default  ?  If  the 
latter,  does  the  abstract  show  a  due  and  legal  service  of  process, 
either  personal  or  substituted  ?  The  subject-matter :  do  the 
pleadings  disclose  a  cause  of  action  within  the  jurisdiction  of 
the  court  ?  The  judgment  or  decree :  is  it  regular  in  form,  i.  e., 
definite,  certain,  etc.  ?  Does  it  correspond  with  the  process 
and  pleading,  i.   e.,  parties  and  allegations  ?     The  sale :  is  it 


OPINIONS    OF    TITLE.  70.1 

■warranted  by  the  prior  proceedings  \  Is  the  selling  officer 
clothed  with  proper  authority?  Was  it  conducted  according 
to  law  \ 

With  respect  to  judgments  in  ■personam:  observe  the  names 
of  defendants  or  judgment  debtors;  are  they  identical  with 
those  of  the  persons  who  now  own  the  land,  or  who  at  some 
former  period  have  held  title  or  possessed  equities  capable 
of  being  reached  by  execution  ?  Resolve  any  doubts  that  may 
arise  by  a  requisition.  Affidavits  of  identity  and  disclaimer 
are  about  the  best  available  means  for  determining  this  point. 
A  certificate  by  plaintiff's  attorney,  when  such  can  be  pro- 
cured, will  also  serve  to  remove  doubts  concerning  the  identity 
of  persons  bearing  the  same  name.  Is  the  judgment  still  a 
subsisting  lien?  Was-  execution  issued  within  a  year  from 
rendition  ?  If  dormant,  has  there  been  a  revivor  ?  If  against 
a  party  in  interest  has  it  been  appealed  from  ?  An  appeal  does 
not  destroy  the  lien  but  may  act  as  a  supersedeas.  If  it  is 
a  subsisting  lien  provision  should  be  made  for  its  satisfaction 
before  accepting  title. 

§  596.  Marginal  Notes  and  Requisitions.  It  will  be 
remembered  that  in  England  the  abstract  is  compiled  almost 
entirely  from  original  documents,  and  that  devious  courses  as 
well  as  intervals  of  title  are  supplemented  and  filled  up  by 
matter  which  to  the  American  examiner  would  be  entirely 
extraneous.  So  the  English  counsel,  as  he  proceeds  in  the 
perusal,  frequently  calls,  in  the  margin,11  for  evidence  of  facts 
which  he  supposes  may  be  material  and  will  readily  be  pro- 
duced, and  further  notes  such  objections  to  the  vendor's 
title  as  he  thinks  proper;  all  of  which  must  be  satisfactorily 
met  and  answered  by  the  vendor  and  his  solicitor.  In  a  less 
degree,  the  same  procedure  may  be  followed  by  the  American 
counsel,  though  many  of  the  "requisitions"  necessary  to  the 
proper  elucidation  of  an  English  title  are  unnecessary  in  the 

11  The    English    abstract    is    fre-  the      observations      of      examining 

qnently  written   upon   a   sheet   with  counsel.        The     calls     and     requisi- 

four  margins    (so  called),  the  outer  tions    made    on    this    margin    thus 

left   hand   one  being   left   clear   for  become  a   part  6f  the   abstract. 
45 


706  ABSTRACTS    OF    TITLE. 

United  States  by  reason  of  our  system  of  registration  and  its 
attendant  doctrines  of  notice  and  estoppel.  Where,  however, 
an  apparent  descent  occurs  in  the  abstract,  and  a  deed  is  shown 
purporting  to  be  executed  by  the  "  heirs  at  law  "  of  the  person 
last  seized,  a  call  should  be  made  for  further  inquiry  or  evi- 
dence touching  the  legitimacy  of  the  claim  of  title  thus  asserted. 
So,  too,  of  a  partition  among  heirs,  by  the  mutual  interchange 
of  deeds,  in  which  minors'  rights  may  be  affected. 

Frequently  a  death  is  suggested  inferentially,  as  where  a 
man  and  wife  convey,  and  on  subsequent  revesture  of  title 
the  man  alone  executes  a  deed.  In  the  same  way  a  marriage 
may  be  suggested,  and  in  every  case,  where  an  individual 
conveys  with  no  words  descriptive  of  the  person,  inquiry  should 
be  made  in  regard  to  marriage. 

American  abstracts  are  not  made  with  a  "  margin,"  however, 
and  the  little  strip  on  the  left  hand  side  of  the  sheet  was  not 
left  to  write  or  scribble  on,  nor  should  the  examining  counsel 
use  it  for  that  purpose.  If  by  chance,  or  sheer  perversity, 
he  should  do  so,  his  writing  should  all  be  erased  before  the 
abstract  leaves  his  hands,  that  what  he  has  written  may  not 
confuse  others  or  be  mistaken  for  the  work  of  the  abstract 
maker.  Objections  may  be  noted  on  his  analysis,  or  preserved 
on  separate  sheets,  and  when  required  for  use  may  be  formally 
drafted. and  annexed  to  the  abstract,  or  embodied  in  his  opinion. 
Even  in  England,  where  the  custom  originated,  it  seems  to 
be  generally  discouraged  by  modem  conveyancers  and  solici- 
tors, as  will  be  seen  by  the  next  paragraph. 

§  597.  Continued.  The  American  system  of  title  ab- 
stracts, or  at  least  that  expounded  in  this  work,  does  not  con- 
template the  marginal  divisions  used  in  the  compilation  of 
English  abstracts,  and  hence,  the  only  margin  is  the  narrow 
strip  on  the  left  hand  side  of  an  ordinarily  ruled  page  of  legal 
cap,  which  is  often  used  for  lead  pencil  memoranda,  all  of 
which  should  be  erased  before  the  abstract  is  returned  to  the 
client.  It  would  seem  to  be  the  present  custom  of  English 
counsel  to  make  their  formal  requisitions  on  a  separate  sheet  of 
paper,  which  has  been  divided  longitudinally  by  being  folded 
down  the  middle.    Upon  the  left  half  of  this  sheet,  counsel, 


OPIXIOXS    OF    TITLE. 


707 


from  the  notes  taken  in  the  course  of  perusing  the  abstract, 
draws  his  questions,  inquiries,  objections,  etc.,  and  delivers  the 
same  for  answers.  The  vendor,  or  his  solicitor,  then  peruses  the 
requisitions,  and  proceeds  to  the  reply  to  them  on  the  right 
half  of  the  sheet,  the  questions  and  answers  being  numbered 
in  consecutive  order,  and  the  replies,  so  far  as  practicable, 
being  written  opposite  to  the  requisitions.  It  is  not  thought 
that  this  is  practiced  to  any  considerable  extent  in  this  country, 
or  at  least,  if  practiced,  it  has  never  been  brought  to  the  atten- 
tion of  the  writer.  In  a  modified  form  it  might  be  found 
useful. 

The  method  may  be  of  advantage  to  American  practitioners ; 
therefore  a  form,  taken  from  Ball's  "  Popular  Conveyancer  " 
(London,  1877),  is  given  herewith. 


Brown  to  Jones. 
Requisitions   on  Title  and   Replies  thereto. 


Requisitions. 

1.  The  lease  of  the  ....  day  of 
. .  .  .,  18.  .,  does  not  appear  to  have 
been  registered.  This  should  be 
done;  the  reference  should  be  sup- 
plied. 

2.  The  license  to  underlet  given 
by  ....  to  . .  .  . ,  and  dated  the  .... 
day  of  .  .  .  .,  18.  .,  must  be  delivered 
up  on  completion,  and  the  vendor 
must  obtain  the  requisite  license  for 
the  present  assignment. 

3.  The  assignment  dated  the  .... 
day  of  .  .  .  .,  18.  .  .  .,  and  made  be- 
tween ....  and  ....  purports  to  as- 
sign the  term  from  29th  September, 
1866,  whereas  the  original  term  is 
from  29th  September,  1863.  How  is 
this  accounted  for? 

4.  Is  the  vendor,  or  are  his  so- 
licitors, aware  of  any  charge  or 
incumbrance,  or  other  matter  affect- 
ing the  premises  sold  which  is  not 
disclosed  by  the  abstract? 

Axdrew   Abbe, 

Solicitor  for  Purchaser. 
(Dated) 


Replies. 

1.  This  lease  was  registered.  We 
can  not  give  the  reference,  but  it 
can  readily  be  ascertained  by  the 
usual  search.  See  clause  —  of  con- 
tract. 

2.  This  will  be  done. 


3.  This  is  an  error.  The  term  is 
from  29th  September,  1863,  and  the. 
assignment  referred  to  in  the  requi- 
sition is  of  the  residue  of  the  term. 


4.  No.  It  is  presumed  that  the 
purchaser  will  make  the  usual 
searches. 


Charles  &  Darwin, 

Solicitors  for  the  Vendor. 
(Dated) 


708  ABSTRACTS    OF    TITLE. 

It  will  be  observed  the  example  just  given  is  of  requisitions 
and  replies  upon  a  leasehold  title. 

'  §  598.  Answers  to  Requisitions.  "  A  purchaser  is  en- 
titled," observes  an  English  writer,12  "  to  be  furnished  with 
evidence  of  facts  material  to  the  title,  whether  such  facts  are 
to  be  used  as  positive  or  negative  proofs,  and  the  vendor  is 
bound  to  answer,  to  the  best  of  his  knowledge,  any  relevant 
question  upon  the  subject  of  the  title,  and  to  furnish  such 
evidence  as  may  be  in  his  power ;  but  the  purchaser  must  con- 
fine his  questions  to  some  particular  defect,  and  not  call  for  a 
general  explanation  of  matters  which  he  may  consider  require 
to  be  explained."  13  The  foregoing  remarks,  though  made  in 
relation  to  the  English  laws  on  the  subject  of  sales  of  real  prop- 
erty, are  not  without  some  force  in  the  United  States,  but, 
as  a  rule,  and  unless  the  agreement  for  sale  otherwise  provides, 
the  purchaser  is  entitled  to  a  full  disclosure  of  everything 
in  any  way  material,  and  the  evidence  should,  so  far  as  practi- 
cable, enable  the  purchaser  to  deduce  a  marketable  title  of 
record.  Where  affidavits,  or  other  instruments  are  furnished 
in  answer  to  requisitions,  such  instruments  should  be  recorded, 
if  accepted,  as  they  then  constitute  a  part  of  the  muniments 
of  title.14  Statements  not  under  oath  or  not  attested  by  any 
solemnities  are  too  unsatisfactory,  even  though  reduced  to  writ- 
ing, though'  sometimes  from  necessity,  or  under  a  choice  of 
difficulties,  letters  are  admissible  to  supply  information  or 
furnish  data  for  missing  facts.     Certificates,  particularly  when 

12  Seaborne  Vend.  &  P.  175.  after  all   inquiries  have  been   made 

!3  Green     v.     Pulsford,     2     Beav.  and  requisitions  supplied,  the  mat- 

(Eng.)  70;  Pearse  V.  Pearse,  1  DeG.  ter  thus  obtained,  or  such  portions 

&  S.   (Eng. )   12.     These  matters  are  as    are    susceptible,    should    be    re- 

usually     arranged     beforehand     by  corded,  and  a  supplemental  abstract 

what   is   called   the   "  Conditions   of  of  same  made  and  appended  to  the 

Sale,"     an     instrument     resembling  original.     This  would  make,  so  far 

what  is  known  in  this  country  as  a  as  may  be,  a  perfect  and   coherent 

"Contract  for  Sale,"    (not  "Agree-  title,  and  is  preferable  to  an  opinion 

ment    to    Deed " )     but    much    more  showing  all  the  defects,  which  must 

circumstantial   and  explicit.  be  remedied  afterward. 
14  As  suggested,  in  another  place, 


OPINIONS    OF    TITLE.  709 

made  in  the  lino  of  official  duty,  may  be  received,  and  for 
many  purposes  they  would  be  prima  facie  evidence  of  the 
facts  recited. 

§  590.  Affidavits  of  Pedigree.  Frequent  allusion  has 
been  made  in  this  work  to  titles  asserted  by  descent,  in  which 
no  probate  or  other  court  proceedings  have  been  had  and  the 
unsubstantial  and  unsatisfactory  nature  of  such  titles  lias  been 
duly  considered.  As  before  remarked,  it  is  customary  for 
counsel  to  call  for  additional  evidence  in  such  cases  as  to  the 
right  of  the  party  asserting  title  to  make  a  deed,  and  this  is 
usually  supplied,  in  the  absence  of  better  testimony,  by  ex  parte 
affidavits  of  pedigree.  Facts  involved  in  a  question  of  pedigree 
should,  whenever  practicable,  be  stated  upon  the  personal 
knowledge  of  the  affiant,  but  may  be  established  by  proof  of 
general  reputation  in  the  family,  or  even  by  proof  of  what 
deceased  members  of  the  family  may  have  said.15  From  the 
necessity  of  the  case,  hearsay  evidence  of  certain  kinds  is 
admissible  in  establishing  matters  of  this  character,  because 
it  is  the  best  of  which  the  nature  of  the  case  admits,16  but  such 
evidence  is  restricted  to  the  declarations  of  deceased  persons 
who  were  related  by  blood  or  marriage  to  the  person  from  whom 
the  descent  is  deduced.17 

An  affidavit  of  pedigree  may  be  prepared  in  manner  fol- 
lowing : 

State   of  Illinois      "j 

County  of  Cook      j 

Thomas  Jones,  being  first  duly  sworn,  on  oath  says:  That 
he  was  well  acquainted  with  James  Smith  in  his  lifetime;  that 
said  James  Smith  died  at  the  City  of  Chicago,  III.,  June  1, 
190J/..     That  said  James  Smith  was  married  but  once  and  Hi  en 

15  Harland   v.   Eastman,    107    111.  17  Blackburn  v.  Crawford's  Lessee, 

535;   Eisenlord  V.  Chun,   126  N.  Y.  Wall.   (U.  S.)    175;  Harland  r.  East- 

r>-y>.  man,   107    111.   535;    1   Greenl.   Evi- 

io  Harland    V.    Eastman,    107    111.  dence,  §  103;  1  Tayl.  Ev.  §  576. 

505 ;    Pdackbnrn   v.  Crawford's  Les- 
see, 3  Wall.    (IT.  S.)    175. 


710  ABSTRACTS    OF    TITLE. 

to  Sarah  Williams;  thai  three  children  were  bom  of  the  mar- 
riage, to  wit;  Andrew  Smith,  a  son,  who  died  in  the  lifetime 
of  said  James  Smith,  unmarried  and  without  issue;  Thomas 
Smith,  a  son;  and  Sarah  Smith,  a  daughter,  now  the  wife  of 
William  Jackson.  Thai  at  the  time  of  his  death  said  James 
Smith  left  him  surviving  his  widow,  Sarah  Smith,  his  son, 
Thomas  Smith,  and  his  daughter,  Sarah  Smith  (Jackson), 
his  only  heirs  at  law  and  next  of  kin. 
(Jurat.)  (Signed)     Thomas  Jones. 

To  the  foregoing  should  be  added  such  facts  as  to  counsel 
may  seem  material  in  the  particular  case,  but  the  recitals  above 
stated  are  all  that  are  essential  to  show  a  valid  descent  to  lineal 
heirs.  Where  the  decedent  was  unmarried,  and  the  descent 
is  claimed  by  collateral  heirs,  more  detail  will  be  necessary. 
In  such  case  the  affidavit  must  show  the  death,  marriage  and 
issue  of  the  common  ancestor  as  well  as  the  death,  without  is- 
sue, of  any  one  who  otherwise  might  have  participated  in  the 
inheritance.  The  example  above  given  will  serve  to  indicate 
the  manner  of  framing  such  an  affidavit.  Whenever  the  affiant 
is  a  member  of  the  family,  or  is  related,  either  by  blood  or 
affinity,  to  any  of  the  parties,  or  where  special  circumstances 
have  given  him  opportunities  for  knowledge  of  a  family  his- 
tory, it  is  always  well  to  incorporate  the  fact  in  the  affidavit. 

§  600.  Analysis  of  Title.  Every  person  who  has  ever 
attempted  to  critically  examine  an  abstract  consisting  of  twenty 
removes,  or  more,  must  have  experienced  some  difficulty  in 
endeavoring,  while  grappling  with  a  present  question,  to  still 
keep  in  view  the  past  course  of  title,  or  to  apply  it  toward  the 
solution  of  the  question  under  consideration.  A  master  mind, 
possibly,  might  be  able  to  successfully  encompass  the  matter 
and  from  chaos  bring  order  with  no  external  aids,  but  to  the 
average  lawyer  some  assistance  is  frequently  indispensable,  and 
this  may  be  obtained  by  making,  what  may  be  called  an  analy- 
sis of  the  title,  as  he  proceeds  in  its  perusal.  This  is  accom- 
plished by  a  chain,  on  which  is  noted  the  condition  of  the  own- 
ership of  the  land  after  every  conveyance,   and  is  a  sort  of 


OPINIONS   OF    TITLE.  711 

balance  sheet  which  shows  the  state  of  the  title  at  every  stage. 
For  tracing  minute,  varied,  or  numerous  ownerships,  it  can  not 
he  well  dispensed  with,  and  its  use  can  frequently  be  advan- 
tageously supplemented  by  sketch  maps  of  the  land  itself. 

It  is  believed  that  no  better  plan  exists  for  preserving  at 
every  stage  of  the  title  the  true  interests  of  the  parties,  than  by 
reducing  them,  at  every  step,  to  a  common  denominator. 
Should  any  of  the  parties  in  interest  by  inadvertence,  mistake 
or  design,  convey  more  than  his  or  her  respective  share,  or  in- 
tending to  convey  all,  should  convey  less,  the  error,  mistake  or 
fraud  is  instantly  detected,  and  the  confusion  which  necessarily 
must  prevail  in  subsequent  conveyances,  will  not  serve  in  the 
slightest  to  distract  the  attention  of  counsel  or  set  him  trying  to 
reconcile  the  irreconcilable  by  making  six  go  into  four.  As  an 
illustration,  take  the  case  of  a  manufacturing  site  in  a  city. 
In  the  course  of  business,  many  partners  come  and  go.  Some 
own  large  interests,  some  small.  They  trade  among  themselves 
and  purchase  interests  from  each  other.  All  the  interests  are 
undivided.  The  purchasers  buy  interests  in  the  business,  but 
incidentally  they  purchase  corresponding  interests  in  the  real 
estate  as  well.  It  will  take  but  a  short  time  to  thoroughly 
complicate  such  a  title,  as  a  demonstration  will  show.  Suppose 
the  abstract  revealed  substantially  the  following  facts : 

Nos.  1  to  5  show  a  conveyance  from  the  government,  and 
a  regular  investure  of  title  with  unbroken  chain  to  A.  B. 
No.     6.     A  subdivision  by  A.  B.     (Now  trace  one  lot.) 

A.  B.  to  C.  D.,  undivided  one  half. 

C.  D.  to  E.  F.,  undivided  one  fourth. 

E.  F.  to  G.  H.,  undivided  one  eighth. 

A.  B.  to  G.  H.,  undivided  one  half. 

C.  D.,  E.  F.  and  G.  H.,  a  mortgage  to  O. 

C.  D.  to  E.  F.,  undivided  one  half  of  one  half. 

C.  D.  to  I.  K.,  undivided  one  half  of  one  half. 
I.   K.,  the  last  grantee,   now   desires  to  have   his   title  ex- 
amined with  the  result  shown  in  the  following  analysis.     This 
analysis  takes  no  note  of  errors,  but  is  simply  to  separate  and 
keep  distinct  the  various  ownerships : 


No. 

7. 

No. 

8. 

No. 

9. 

No. 

10. 

No. 

11. 

No. 

12. 

No. 

13. 

V12  ABSTRACTS    OF    TITLE. 

ANALYSIS  OF  TITLE, 
to 
Lot  6,  Block  Jf.2,  original  Plat  of  the  City  of  Kenosha,  ~\Yis., 
as  shown   by  the  annexed  abstract.     The   numbers  correspond 
to  the  numbers  of  the  removes  as  shown  in  the  abstract. 

The   ownership   of  said   lot  after  each   of  the   conveyances 
mentioned  in  said  abstract  ivas  as  follows: 

1     Numbers  1  to  5  show  regular  investure  of  title  in  A.  B. 
to  No.   G  a  subdivision   by  him,  Lot  6  being  shown  on 

6  plat  of  such  subdivision. 

\       All.  Sept.  1,  1858. 


7  A.  B. 
C.  D. 


A.  B.,  l  =  \  ) 

C  D..  I  —  \  \       All.  Dec.  13,  1858. 

E.  F. ,1  =  1  ) 


A.  B.,   |  =  | 

C.  D.,   1  =  | 

E.  /'.,  |  =  1 

G.  H.,   |  =  l 


All  Feb.  lh,  1859. 


10  C.  D.    1  =     2  ^ 

E.  F.',i=  1  I       All  May  10,  1859. 

G.  EL.,   1  and  J  =  |  ) 

11  Mortgage. 

12  /;.  F..  land  J  =  l  )       All.  Aug.  27,  1859. 
G.  E.,  |  =             1  )            Subj.   to  mortgage. 

13  S'  S"'  1^1  \       AU  and  i  excess.  Jan.  9,  I860. 

tr.    a  .,    s  8 


/.    K.,  l=i 


No    title    in    I. 


The  foregoing;  illustration  is  necessarily  brief  and  simple. 
In  practice,  much  more  difficult  problems  are  presented,  as 
where  the  abstract  consists  of  from  forty  to  fifty  removes,  each 
one  of  fractional  interests,  and  not  in  the  easily  understood 
parts  shown  in  the  example,  but  of  ninths,  fifteenths,  etc., 
until  the  chain  presents  one  bewildering  maze  of  diverse  frac- 
tional interests.  In  no  other  way  known  to  the  writer  can 
these  unevenly  balanced  interests  be  harmonized  and  presented 
ir  tangible  shape  than  by  the  method  of  reduction  above  in- 
dicated. Counsel  can  then  see  at  a  glance  the  actual  interest  of 


OPINIONS    OF    TITLE. 


713 


every  owner  at  every  stage  of  the  title.  He  can  tell  if  any 
have  conveyed  more  than  they  possessed,  as  well  as  whether 
any  interests  yet  remain  in  parties  who,  supposing  they  had 
divested  themselves  of  all  title,  no  longer  claim  ownership ; 
and  the  further  fact,  in  whom  the  present  title  of  the  premises 
rests,  and  the  extent  of  the  ownership  of  each  person. 

Thus,  in  the  example,  I.  K.  took  nothing  by  his  deed,  yet 
supposing  that  he  had  in  time  purchased  other  interests,  and 
bought  and  sold  from  and  to  others  of  the  present  parties,  as 
well  as  new  parties  who  subsequently  came  in,  this  surplus 
one  fourth,  or,  as  it  might  be  in  actual  experience,  one  six- 
teenth, or  even  a  smaller  interest,  or  a  fractional  part  of  a 
fractional  part,  would  have  become  strangely  blended  with  the 
legitimate  interest.  However  correct  the  opinions  of  Mr.  Sug- 
den  in  respect  to  note  taking  on  the  perusal  of  English  ab- 
stracts, it  must  be  apparent  that  notes  of  some  kind  can  not  be 
well  dispensed  with  under  the  American  system,  and  of  all  the 
devices  to  trace  title,  none  can  compare  in  simplicity  and 
thoroughness  with  the  simple  "  analysis  "  above  presented.18 

§  601.     Analytical  Chains.     Even  when  the  title  is  not 


18  Mr.  Greenwood,  an  English 
writer  on  conveyancing,  says  he 
"  has  found  it  a  convenient  course 
in  perusing  an  abstract  to  take  a 
sheet  of  paper  with  a  double  margin 
and  insert  the  date  of  the  deed  in 
the  left  hand  margin,  and  on  the 
opposite  side  put  such  part  of  the 
deed  ■  as  is  nececsary  to  show  the 
devolution  of  the  title  and  any  spe- 
cial clauses  or  stipulations,  leaving 
the  right  hand  margin  for  notes  and 
queries.  It  may  sometimes  be 
convenient  to  keep  the  devolution 
of  the  legal  and  equitable  estates 
separate.  This  will  depend  on  the 
title;  but  it  is  always  the  best 
course  in  perusing  an  abstract  to 
show  the  devolution  of  the  title  to 
any  attendant  term   of  years   on   a 


separate  sheet  of  paper.  All  this 
may  be  done  very  briefly;  it  is  only 
necessary  to  make  a  note  in  the 
margin  opposite  any  particular 
clause  or  matter,  in  order  that  at- 
tention may  be  readily  called  to  it 
afterward,  as  perhaps  the  next  or 
a  subsequent  deed  may  have  the 
effect  of  disposing  of  the  point;  and 
should  this  be  so,  it  is  a  good  plan 
to  insert  a  note  in  the  margin  of  the 
analysis  under  the  defect  previ- 
ously noted,  and  thus  many  of  the 
points  it  has  been  found  necessary 
to  raise  will  be  disposed  of.  and 
those  not  cleared  up  will  form  the 
material  for  requisitions  on  Hie 
title."  Greenwood's  Conveyancing 
(6th  Ed.),  46. 


714  ABSTKACTS    OF    TITLE. 

complicated  by*  a  multiplicity  of  small  ownerships,  if  it  be  long 
drawn  out,  that  is,  extending  over  a  long  period  of  years  and 
passing  through  many  hands,  some  kind  of  chain  is  generally 
of  material  assistance  in  keeping  the  course  of  title  prominently 
before  the  examiner,  and  prevents  frequent  recurrence  to  parts 
of  the  abstract  that  have  already  been  passed  over.  This  can 
be  fairly  accomplished  by  an  analytic,  or  in  one  sense  synthetic, 
chain,  showing  all  the  conveyances  and  their  connection  with 
each  other.  Whenever  an  adverse  title  intrudes,  this  chain 
will  be  a  great  help,  both  in  keeping  the  titles  separate  and 
in  showing  their  general  course,  and,  if  that  event  occurs,  their 
ultimate  union.  This  chain  may  be  prepared  and  used  in  con- 
nection with  the  analysis  of  title  described  in  the  last  section, 
or  it  may  be  compiled  on  a  separate  sheet,  and  each  used  to 
supplement  the  other. 

The  chain  may  be  constructed  in  any  manner  that  will  best 
serve  to  accomplish  the  desired  purpose,  but  a  very  simple 
method  is  to  make  a  geometrical  diagram,  the  instruments  being 
represented  by  quadrangles,  and  the  connections  and  course 
of  title  by  straight  lines.  This  method  has  the  merit  of  sim- 
plicity, and  presents  at  a  glance  the  general  course  of  title  in 
a  very  clear  and  concise  manner.  The  quadrangles  bear  num- 
bers with  reference  to  the  abstract,  and  may  be  further  distin- 
guished by  the  names  or  initials  of  the  parties  and  the  dates 
of  transfer.  As  a  mechanical  assistance  in  making  this  analysis 
a  rubber  stamp  may  be  employed  for  marking  the  squares, 
the  specific  matter  being  filled  in  with  a  pen. 

A  chain  presenting  few  difficulties  might  be  made  somewhat 
in  the  following  manner.  In  this  example  the  dates  are 
omitted,  but,  when  this  form  of  analysis  is  the  only  method 
employed,  it  is  suggested  that  they  be  inserted. 

§  602.  Sketch  Maps.  The  great  aid  derived  from  sketch 
maps  has  several  times  been  alluded  to  during  the  progress  of 
this  work,  and  in  all  cases  of  "  snarls  "  in  the  description  of 
land,  as  well  as  in  keeping  counsel  posted  on  the  relative 
dimensions  of  the  property  conveyed  at  each  successive  remove, 
they  are  invaluable.     Their  aid  is  more  frequently  invoked  in 


OPINIONS   OF    TITLE. 


715 


ANALYSIS  OF  TITLE 

to 
Section  10,  T.  1  N.,  R.  23,  E. 


ORIGINAL  TITLE. 


U.  S.  to  A 


3 
B  to  C. 


4 
Cto  D. 


DtoG  u»dy2. 


D  to  E  Und  ys. 


Eto  F  Und  y2. 


6-9 

G  to  H  Und  Y%. 
FtoH     »     » 


11 

State  to  I. 


/to/. 


13 
J  to  K. 


14 
KtoL. 


10-15 
H  to  M-L  to  M. 


16 
M  to  N. 


716  ABSTRACTS    OF    TITLE. 

abstracts  of  what  are  popularly  termed  "  agricultural  lands," 
or  lands  which  are  still  referred  to  by  the  descriptions  fur- 
nished by  the  government  surveys,  but  they  will  be  found 
equally  useful  in  tracing  title  to  all  land  sold  by  metes  and 
bounds,  and  which  has  never  been  the  subject  of  formal  sub- 
division into  blocks  and  lots. 

To  successfully  employ  these  maps,  it  is  necessary  that  coun- 
sel should  possess  a  little  knowledge  of  surveying  and  under- 
stand the  use  of  a  protractor  and  a  few  other  simple 
instruments.19  A  tracing  of  the  government  survey  will  be 
found  very  convenient  in  all  examinations,  and  if  counsel  is 
unable  to  procure  such  tracing  he  should  request  the  examiner 
to  furnish  a  sketch  of  the  survey  in  connection  with  the  abstract. 
In  like  manner,  should  he  feel  inadequate  to  the  task  of  pre- 
paring sketches  of  the  property,  arrangements  should  be  made 
with  the  examiner  to  furnish  them.  In  no  case  -should  he 
dispense  with  their  sendees  unless  he  thoroughly  understands 
the  condition  of  the  property  both  topographically  and  with 
reference  to  its  superficial  measurements,  and  in  every  case 
where  it  can  be  done,  the  sketches  should  be  made  by  himself 
rather  than  by  an  assistant,  as  the  work  of  figuring  out  the 
dimensions,  tracing  the  courses,  and  locating  the  monuments 
is  of  incalculable  value  in  arriving  at  a  proper  conclusion 
and  a  thorough  understanding  of  the  "  lay  of  the  land." 

The  maps  or  sketches  should  be  preserved  with  the  analysis 
and  other  memoranda,  or  turned  over  to  the  client  in  connection 
therewith  if  such  should  be  the  understanding.  In  case  they 
are  given  to  the  client  the  particular  tracts  under  consideration 
should  be  colored  or  shaded,  to  distinguish  them  from  other 
parts  of  the  map,  and  the  dimensions,  whenever  practicable, 
should  be  marked  on  the  lines  or  courses. 

§  603.     Preservation  of  Memoranda.     "  It  is  desirable," 

19  Mr.   Curwen   recommends   only  convenient,  on  account  of  the  aecu- 

a  semi-circular  protractor,  a  pair  of  racy    with   which,   by   means    of   it, 

dividers,  and  a  scale  of  equal  parts.  links,    being    the    hundredth    parts 

A   scale   divided   into   fiftieth   parts  of   a   chain,   can   be   measured.     See 

of  an  inch  he  recommends  as  most  Curwen  on  Absts.  21. 


OPINIONS    OF    TITLE.  Vl7 

says  Mr.  Lee,20  "  that  the  purchaser,  if  his  contract  is  com- 
pleted,  should  carefully  preserve  not  only  the  abstract  itself, 
but  all  queries  and  objections,  with  the  answers  or  statements 
made  respecting  the  title,  as,  after  a  lapse  of  time,  these  ob- 
servations and  answers  may  of  themselves  be  of  some  weight 
in  determining  future  questions."  The  reader  will  understand 
however,  that  answers  and  statements  made  in  response  to 
queries  and  objections,  play  a  far  more  important  part  in  the 
acceptance  of  English  titles  than  they  possibly  could  in  the 
matter  of  American  titles.  The  statements  are  signed  by  solici- 
tors or  parties  making  them,  and  are  regarded  for  certain 
purposes  as  a  part  of  the  abstract  to  which  they  are  usually  an- 
nexed. 

Under  our  system  the  only  memoranda  that  could  be  of  ma- 
terial value  to  the  purchaser  would  consist  of  the  analysis  of 
the  abstract,  or  of  the  title,  and  these,  when  properly  and  care- 
fully made,  would  undoubtedly  be  a  desirable  acquisition  and 
well  worthy  of  preservation.  They  would  not  only  be  of  great 
assistance  to  the  purchaser  by  enabling  Him  to  peruse  the  ab- 
stract intelligibly  at  his  leisure,  but  would  also  tend  to  ma- 
terially reduce  the  expense  of  subsequent  examinations.  But, 
being  the  private  memoranda  of  counsel,  he  would,  of  course, 
be  under  no  obligation  to  deliver  his  notes  to  the  client,  how- 
ever valuable  they  might  be,  as  his  opinion  is  all  that  is  asked 
and  presumably  all  that  is  paid  for.  The  methods  by  which  he 
arrived  at  such  opinion,  or  the  instrumentalities  employed, 
are  his  own  property  to  be  given  or  withheld  as  he  may  see  fit. 
The  writer  suggests,  that  in  all  cases  they  be  retained  by  coun- 
sel, as  not  infrequently  occasions  for  their  consultation  will 
subsequently  occur.  In  his  own  practice  he  has  found  it  con- 
venient to  keep  a  blank  book  in  which  has  been  preserved  his 
notes  of  examinations.  On  the  left  hand  page  is  placed  the 
analysis  of  the  abstract  and  on  the  opposite  pace  the  objections, 
queries  and  requisitions  for  further  information,  together  with 
his  notes  and  observations.     Whenever  questions  have  afterward 

20  Lee  on  Absts.  *  3. 


718  ABSTRACTS    OF    TITLE, 

arisen  with  respect  to  the  opinion  rendered  on  the  title,  the 
matters  thus  preserved  have  been  found  of  very  material  as- 
sistance. Another  advantage  will  be  found,  in  the  aid  such 
memoranda  may  afford  in  subsequent  examinations  of  the 
same  property  or  parts  thereof. 

§  604.  Passing  the  Title.  In  examining  a  title,  counsel 
is  frequently  compelled  to  admit  evidence  which,  although  it 
may  be  satisfactory  as  a  proof  of  the  fact,  yet  would  not  be  re- 
ceived in  a  court  of  justice;  for  example,  affidavits  as  to  facts 
disclosed  inferentially,  and  to  prove  deaths,  marriages,  etc. 
Such  affidavits,  though  inadmissible  under  the  rules  of  evi- 
dence, are  valuable  from  the  reason  that  they  show  that  liv- 
ing persons  can  at  the  time  establish  the  facts  therein  recited. 
On  the  other  hand,  in  receiving  evidence  admissible  at  law, 
counsel  is  compelled  to  submit  the  latter  to  a  severer  test  than 
it  would  be  subject  to  upon  an  ordinary  trial,  for  it  is  not  a 
contest  between  two  litigants  which  has  the  better  title,  but  a 
calm  consideration  by  a  man  in  his  chambers,  whether  the 
seller's  title  is  a  safe  one  against  all  the  world.21 

§  605.  What  Constitutes  a  Valid  Title.  In  the  absence 
of  any  stipulations  to  the  contrary  the  vendor,  in  every  con- 
tract of  sale,  impliedly  undertakes  to  furnish  to  the  purchaser 
a  marketable  title.22     It  is  for  the  purpose  of  determining  this 

21  Sugd.  V.  &  P.  16.  a    purchaser   and    a    mortgagee   are 

22  The  remarks  of  an  eminent  Eng-  nearly  similar.  Some  books  indeed 
lish  writer  upon  this  subject  may  have  stated  that  a  purchaser,  com- 
not  be  uninteresting.  Mr.  Lee  says:  monly  so  called,  should  require 
"  Under  the  term  purchaser,  the  the  strictest  evidence  of  title,  be- 
law  generally  includes,  a  mort-  cause  all  his  interest  depends  upon 
gagee,  and  also  a  lessee,  to  the  ex-  his  power  of  making  out  a  strict 
tent  of  their  respective  interests;  title  on  a  future  sale;  and  that 
to  that  extent  they  are  purchasers;  a  mortgagee,  seldom  advancing 
but  the  rules  of  law  and  the  evi-  money  to  the  full  value  of  the 
dence  of  title,  as  they  relate  to  a  estate,  may  well  dispense  with  the 
lessee,  are  very  different  from  the  most  complete  evidence  of  title,  as 
rules  and  the  evidence  relating  to  a  an  imperfect  title  might  probably 
purchaser  in  the  common  accepta-  fetch  the  amount  of  his  advances, 
tion  of  the  term,  as  likewise  to  a  Others  say  that,  as  a  mortgagee 
mortgagee;  but  the  title  and  evi-  can  never  gain  anything  beyond 
dence  usually  required  on  behalf  of  the   amount  of  the   monev   lent,  he 


OPINIONS    OF    TITLE.  719 

quality  in  regard  to  the  proffered  title  that  counsel  is  asked  to 
investigate  it  prior  to  the  consummation  of  the  sale.  "  I  am 
of  the  opinion  that  John  Smith  possessed  a  good  and  valid  title," 
etc.,  is  a  familiar  expression  in  attorney's  certificates  of  opin- 
ion, and  they  are  the  controlling  words  that  induce  the  pur- 
chaser  to  accept?  the  vendor's  deed.  Therefore  the  inquiry, 
what  is  a  "good  and  valid"  title  is  pertinent  in  this  connec- 
tion. It  may  be  briefly  stated  in  answer,  that  the  title  dis- 
closed should  extend  to  show  a  full  and  perfect  right  to  prop- 
erty and  present  possession  vested  in  the  vendor.23  It  must 
also  embrace  the  entire  estate  or  interest  sold,24  and  that  free 
from  the  lien  of  all  burdens,  charges,  or  incumbrances,25  and 
should  not  only  be  free  from  litigation,26  but  from  palpable 
defects 27  and  grave  doubts.28  It  should  consist  of  both  the 
legal  and  the  equitable  titles,29  and  be  fairly  deducible  of 
record.30  It  may  still  be  a  valid  title,  even  though  charged 
with  incumbrances,31  but  in  that  event  the  opinion  should 
discriminate  and  the  title,  if  otherwise  unimpaired,  must  be 
certified  as  "  subject  to  the  lien,"  etc.,  of  the  incumbrance. 
The  terms  of  the  contract  of  sale  will,  in  many  instances,  de- 
termine the  question  of  title  when  raised,  but  ordinarily,  while 
a  purchaser  will  not  be  compelled  to  accept  a  title  palpably 
defective,  he  can  not  justify  his  refusal  to  accept  by  mere  cap- 
tious objections,  nor  is  it  sufficient  for  him,  when  the  jurisdic- 

ought  to  run  no  risk  of  losing  that,  266;  Davidson  V.  Van  Pelt,  15  Wis. 

not  even  the  slightest;  that  a  pur-  341. 

chaser   takes    the    estate    for   better  26  Speakman  v.  Forepaugh,  44  Pa. 

and  for  worse,  and  therefore,  rather  St.   363. 

than  reject  a  title  for  want  of  suffi-  27  Smith    V.    Robertson,    23    Ala. 

cient  evidence,  he  maybe  sometimes  312;    Holland    r.    Holmes,    14    Fla. 

advised  to  take  it,  and  speculate  for  390. 

a  rise  in  value."    Lee  on  Ab.  (Eng.)  28  Gans     V.     Renshaw,     2     Barr 

*  18.  (Pa.)     34;     Scott    v.    Simpson,     11 

23Delevan   v,   Duncan,   49   N.   Y.  Heisk.   (Tcnn.)   310. 

485;    Davis   v.   Henderson,    17   Wis.  29  Taft  v.  Kessel,   16  Wis.  273. 

105.  30  Martin   v.  Judd,  81   111.  488. 

''24  Taft  r.  Kessel,  16  Wis.  271.  31  Caal  v.  Higgins,  23  N.  J.   Eq. 

2r>  Roberts    v.    P>:issett,    105   Mass.  308. 
407:    Jones    v.    C.ardner,    10    Johns. 


720  ABSTRACTS    OF    TITLE. 

tion  of  a  court  is  invoked  to  compel  him  to  perform  his  con- 
tract, merely  to  raise  a  doubt. 

A  defect  in  a  record  title,  will,  under  most  circumstances, 
furnish  a  defense  to  a  purchaser,  particularly  where  it  affects 
the  value  of  the  property  or  would  interfere  with  its  sale,  and 
thus  render  it  unmarketable,32  but  there  is  no  inflexible  rule, 
in  the  absence  of  stipulations  to  the  contrary,  that  a  vendor 
must  furnish  a  perfect  title  of  record,  and  it  has  frequently 
been  held  that  defects  in  the  record  or  paper  title  may  be  re- 
moved by  parol  evidence.33  Where,  however,  the  title  depends 
upon  a  matter  of  fact  which  is  not  capable  of  satisfactory  proof, 
or,  if  capable  of  that  proof,  yet  is  not  so  proved,  the  title  is 
not  marketable  and  the  purchaser  is  not  obliged  to  take  it. 
A  title,  to  be  valid,  need  not  necessarily  be  deducible  of  rec- 
ord, for  a  prescriptive  title  may,  under  proper  conditions,  be 
as  strong  as  a  title  by  grant,34  yet  such  titles,  unless  there  has 
been  a  continuous  holding  for  at  least  twenty  years,  .are  always 
liable  to  defeat  from  undisclosed  defects,  and  even  after  the 
expiration  of  such  period  they  may  still  be  open  to  attack 
through  claims  by  minor  heirs,  or  persons  under  disability. 

Again,  a  valid  title  should,  as  is  self-evident,  be  free  from 
latent  defects  or  taint  of  fraud;  yet  this  is  something  that, 
from  its  very  nature,  must  frequently  pass  undetected,  even 
by  the  exercise  of  the  greatest  prudence.  As  a  rule,  how- 
ever, where  the  legal  title  is  vested  in  the  vendor,  and  there 
is  nothing  appearing  from  which  purchasers  can  know  that 
there  has  been  any  fraud  in  his  acquisition  of  the  title,  or  any 
invalidity  in  any  of  the  deeds  in  his  chain  of  title,  they  will 
be  protected  in  the  purchase.35 

§  606.  Flaws.  This  term  may  be  aptly  used  to  describe 
an  apparent  gap  or  break  in  the  chain,  which,  when  occurring, 
constitutes  in  many  cases  an  insurmountable  impediment.  A 
requisition  must  in  all  cases  be  made  for  the  missing  links, 

32  Shriver    r.    Shriver,    86    N.   Y.  34  McNab  V.  Young.  81   111.   11. 
576.  35  Sherman  v.  Kane,  86  N.  Y.  57. 

33  Hellreigel   v.   Manning,    97   N. 
Y.  56. 


OPINIONS    OF    TITLE.  721 

whether  the  interruption  be  partial,  as  where  one  of  several 
persons  shown  to  possess  a  unity  of  interest  fails  to  convey,  or 
entire,  as  where  no  privity  of  title  is  shown  to  exist  between 
present  and  past  owners.  Where  the  original  title  fails,  and 
requisitions  for  the  purpose  of  showing  connection  are  re- 
turned unsatisfied,  the  title  asserted  becomes  adverse  to  the 
original  title  and  necessary  inquiries  in  pais  must  be  made  to 
show  a  valid  title  by  adverse  possession. 

An  apparent  break  in  the  chain  often -occurs  in  case  of  de- 
scents, the  estate  of  the  intestate  never  having  been  settled  in 
probate ;  and  when  the  only  heirs  are  married  women,  and  a 
conveyance  is  subsequently  made  by  them,  if  no  description  of 
the  person  or  capacity  is  given,  the  break,  upon  the  record, 
will,  of  course,  be  absolute.  When  a  grantee  under  an  unre- 
corded land  contract  has  gone  into  possession,  but  no  deed  has 
ever  been  made,  the  same  state  of  facts  exists  in  respect  to  con- 
veyances by  him.  Again,  and  these  cases  are  by  no  means  un- 
common, simple  or  ignorant  people  frequently  go  into  posses- 
sion under  deeds  which  they  never  cause  to  be  recorded,  and 
this  aj>parently  breaks  the  continuity  of  interest  and  title.  Req- 
uisitions, in  many  instances,  will  suffice  to  discover  the  missing 
evidence,  but  when  they  can  not  be  found,  possession  and 
claim  of  title  under  the  statute  of  limitations  must  be  relied  on. 

A  serious  defect  of  the  character  under  consideration  will 
frequently  be  found  at  the  very  initiation  of  the  title,  the  ab- 
stract showing  only  the  original  entry  at  the  government  land 
office,  supplemented,  possibly,  by  the  local  record  of  the  re- 
ceiver's duplicate  receipt  ISTow  it  is  immaterial  how  long 
the  premises  may  have  remained  in  private  occupancy  nor 
through  how  many  hands  they  may  have  passed;  the  title,  in 
such  a  case,  is  simply  an  equity,  for  no  limitation  runs  against 
the  government.  Yet  such  defects  are  very  common.  From  a 
very  early  day  in  the  history  of  the  public  land  system,  settlers 
and  purchasers  seem  to  have  been  strangely  indifferent  in  tli!1 
matter  of  securing  possession  of  the  government  patents  for 
their  lands,  and  in  hnndrorls  of  thousands  of  instances  the 
foundation  of  title,  as  exhibited  by  local  records,  to  lands  pur- 
46 


722  ABSTRACTS    OF    TITLE. 

chased  from  the  government,  some  of  them  of  vast  present 
value,  is  merely  the  duplicate  receipt  above  alluded  to.  Prob- 
ably this  indifference  has  arisen  chiefly  from  ignorance  on  the 
part  of  purchasers  that  a  patent  constitutes  the  only  posi- 
tive evidence  of  the  transfer  of  title  from  the  government  to 
the  individual,  but  whatever  may  be  the  cause,  the  fact  exists,36 
and  it  should  be  the  duty  of  every  attorney  examining  a  title 
to  see  that  this  vital  link,  showing  the  original  derivation,  is 
restored  whenever  it  is  shown  to  be  wanting.37 

§  607.  Clouds  upon  Title.  In  the  examination  of  ab- 
stracts counsel  frequently  finds  minor  defects,  imperfect  de- 
scriptions, invalid  instruments,  and  abortive  attempts  at  con- 
veyance, which,  while  not  reaching  the  merits  of  the  title,  nor 
yet,  in  many  cases,  casting  any  suspicion  upon  it,  still  tend  in 
a  measure  to  obscure  it.  These  defects  are  known  as  "  clouds 
upon  the  title,"  and  it  is  the  duty  of  counsel  to  detect  and  point 
out  such  defects  that  proper  steps  may  be  taken  to  remove  them. 
The  opinion  should  properly  discriminate  between  deeds  which 
are  defective  merely,  or  which  might  be  made  the  foundation 
of  a  valid  title  in  connection  with  other  circumstances,  and 
those  which  are  absolutely  void,  for  the  legal  effect  of  the  two 
classes  is  not  the  same.  As  a  general  rule,  a  deed,  lien,  charge 
or  incumbrance  of  any  kind,  to  cast  a  shadow  upon  title,  so 
as  to  give  the  owner  relief  in  equity,  must  be  one  that  is  regu- 
lar and  valid  upon  its  face,  but  is,  in  fact,  irregular  and  void 
from  circumstances  which  have  to  be  proved  by  extrinsic  evi- 
dence.38    If  the  invalidity  plainly  appears  on  the  face  of  the 

36  It    would    seem    from    the    re-  older  States  of  Ohio,  Indiana,   Illi- 

port    of    the    Commissioner    of    the  nois,  etc. 

General    Land    Office    for    the    year  37  The    initial    statements    taken 

1875,  that  at  that  time  there  were  from    the    Government    Tract    Book 

remaining  in  the  files  of  the  general  will    always    furnish    a    clue    to    a 

and    local    land    offices    nearly    two  hreak   of  this  kind,  and  a   certified 

millions  of  uncalled  for  patents,  cov-  copy  of  the  patent  can  be  obtained 

ering,     probably,      not      less     than  by  any   person  showing  himself  to 

150,000,000  acres,  no  small  propor-  be  entitled  to  it. 
tion  of  which  were  lands  purchased  38  Murphy  r.  Mayor,  etc.,  of  Wil- 

of  Ihe  government  more  than  a  half  mington,     6     Houst.      (Del.)      108; 

century    before,    and    lying    in    the  Crooke  v.  Andrews,  40  N.   Y.  547; 


OPINIONS    OF    TITLE.  723 

instrument,39  or,  although  not  apparent  on  the  writing,  if  it 
is  shown  by  any  of  the  preliminaries  which  attend  it,  or  in 
any  of  the  links  which  connect  it  with  the  title,40  so  that  no 
lapse  of  time  nor  change  of  circumstances  can  weaken  the 
means  of  defense,  such  an  instrument  does  not,  in  a  just  sense, 
even  cast  a  cloud  upon  the  title,  or  diminish  the  security  of  the 
owner  of  the  land,41  for  the  rule  is  well  settled  that  such  an 
instrument  can  work  no  mischief,  and  that  no  occasion  arises 
for  equitable  interference  for  its  removal  or  cancellation.42 

It  is  not  recommended,  however,  that  every  matter  appearing 
in  the  abstract,  and  shown  thereby  to  be  irregular  and  void 
upon  its  face,  be  disregarded  for  that  reason,  for  the  legitimate 
province  of  the  opinion  is  to  specifically  show  the  legal  effect 
of  all  instruments  or  proceedings  that  to  the  non-professional 
reader  may  seem  suspicious,  and,  by  pointing  out  such  matters 
and  showing  their  invalidity,  to  allay  his  fears  and  confirm 
his  confidence  in  the  title.  It  is  for  this  very  purpose,  that 
intending  purchasers  seek  the  aid  of  counsel,  and  every  doubt 
or  question  that  may  arise  to  the  legal  mind  should  find  ex- 
pression in  the  opinion.  Many  questions  of  this  character, 
which  formerly  could  be  summarily  disposed  of,  now  require 
a  very  different  treatment,  from  the  fact  that  in  a  large  number 
of  States  the  statute  has  made  certain  classes  of  deeds  and  con- 
veyances prima  facie  evidence  of  the  facts  therein  recited,  and 
not  only  of  their  own  validity,  but  of  every  anterior  proceed- 
ing necessary  to  constitute  such  validity.  Whenever  a  deed  is 
primary  evidence  of  title  and  of  regularity  in  the  prior  pro- 

Sanxay    v.    Hunger,    42     Ind.    44;  and  upon  which  the  validity  of  the 

Davidson    v.    Seegar,    15    Fla.    671.  adverse  title  depends,  are  shown  to 

But  see,   Eigdon   v.   Shirk,    127   111.  be   void    for   jurisdictional   defects: 

411.  Florence    v.    Paschal,    50    Ala.    28; 

39  R.  R.  Co.  v.  Schuyler,  17  N.  Y.  Hatch  v.  City  of  Buffalo,  38  N.  Y. 
599;  Sloan  V.  Sloan,  25  Fla.  53.  27G. 

40  Fonda  t'.  Sage,  48  N.  Y.  173;  41  R.  R.  Co.  v.  Schuyler,  17  N.  V. 
Griswold  V.  Fuller,  33  Mich.  268;  599;  Bogcrt  V.  City  of  Elizabeth,  27 
as  where  title  is  deduced  through  a  N.  J.  Eq.  568. 

judicial  sale,  where  the   proceedings  42  Fonda  V.   Sage,  48  N.   Y.    173; 

which   were  the   basis  of  such   sale,       Cohen   V.   Shard,  44  Cal.  29. 


724  ABSTRACTS    OF    TITLE. 

ceedings,  and  can  only  be  -overcome  by  proof  of  certain  facts 
dehors  the  deed,  a  cloud  is  always  created,43  for  though  the 
instrument  is  really  void,  it  has  an  ostensible  validity,  and 
throws  a  doubt  upon  the  title,  and  not  only  can  be  used  for 
vexatious  purposes,  but  is  such  a  title  that,  if  asserted  by  action 
and  put  in  evidence,  would  drive  the  other  party  to  the  pro- 
duction of  his  own  title  in  defense.44 

§  608.  Inquiries  in  Pais.  Technically,  when  an  attor- 
ney is  called  upon  to  pass  the  title  to  land  under  a  given  state 
of  facts  as  presented  by  the  abstract,  he  is  not  supposed  or 
presumed  to  extend  his  investigations  beyond  what  is  directly 
or  inferentially  disclosed  therein.  The  absence  of  requisite 
links  in  the  chain  of  title  calls  for  inquiries  respecting  same, 
but  the  existence  of  unrecorded  evidence,  or  of  equities  not 
apparent  or  fairly  deducible,  do  not  legitimately  come  within 
the  province  of  an  examining  counsel. 

It  is,  however,  strongly  recommended,  that  in  addition  to 
the  inquiries  and  requisitions  made  during  the  perusal  of  the 
abstract,  and  which  are  raised  by  the  disclosures  therein  made, 
a  further  inquiry  be  directed  to  the  present  possession  and  oc- 
cupation of  the  land  under  examination.45  A  due  observance 
of  this  suggestion  will  give  greater  stability  to  the  opinion,  and 
may  in  many  cases  prove  a  mild  preventive  of  a  bitter  law- 
suit. A  long  series  of  adjudicated  cases  confirm  the  doctrine 
that  open  and  exclusive  possession  of  land  affords  notice  of  the 
claim  of  the  person  so  in  possession,46  and  a  purchaser  of  land 

43  Tilton  v.  R.  R.  Co.,  3  Sawyer  almost  as  essential  a  showing  as  un- 
(C.  Ct.),  22.  broken    continuity    of    record    title. 

44  Lick  v.  Ray,  43  Cal.   83.  In  fact,  in  an  action  of  ejectment, 

45  The  importance  of  this  inquiry  which  is  nothing  more  than  an 
can  not  be  over-estimated  in  cases  action  to  try  a  disputed  title,  the 
where  a  long  interval  exists  between  fact  of  possession  by  the  plaintiff 
the  time  of  acquiring  title  and  its  or  those  under  whom  he  claims  is 
divesture  of  record.  In  some  cases  an  essential  part  of  the  proof,  and 
seven  years,  and  in  nearly  every  the  mere  production  of  a  deed,  with- 
case  twenty  years,  will  be  sufficient  out  more,  will  not  be  sufficient  to 
to  bar  an  apparent   title  of  record  establish  title. 

when  adverse   rights  have   been   ac-  40  Britchard    v.    Brown,   4   N.   H. 

quired;  and  continuous  possession  is       397;   Redden  v.  Miller,  65  111.  336; 


OPINIONS    OF    TITLE.  725 

at  the  time  adversely  held  by  another  who  does  not  inquire 
of  the  party  in  possession  as  to  his  title  or  right  of  occupancy, 
will  not  be  considered  a  bona  fide  purchaser,  notwithstanding 
he  may  have  examined  the  registry  of  titles.47  A  purchaser 
of  land  who  examines  the  records  is  protected  by  them  as  far 
as  they  can  protect  him,  but  he  necessarily  takes  the  risk  of 
having  the  actual  state  of  the  title  correspond  with  that  which 
appears  of  record.48  The  registration  laws  are  designed  only 
to  protect  purchasers  against  latent  equities ;  hence,  unrecorded 
conveyances  are  void  as  against  subsequent  purchasers  with- 
out notice,  and  while  in  a  few  instances  courts  may  be  found 
holding  strongly  against  the  doctrine  of  constructive  notice 
arising  from  possession  merely,49  though  admitting  such  to  be 
competent  for  the  consideration  of  a  jury  in  connection  with 
direct  evidence  of  actual  notice,  the  vast  preponderance  of  au- 
thority sustains  the  principle  that  a  purchaser  from  the  record 
owner  is  bound  to  notice  the  possession  of  another,  and  takes 
subject  to  the  right  indicated  by  such  possession.50 

In  any  event  the  safe  course  is  to  make  the  inquiry,  for  the 
law  will  not  extend  its  protection  to  those  who  through  neg- 
ligence or  inattention  suffer  an  advantage  to  be  taken  of  their 
credulity,  nor  will  it  afford  relief  to  those  who  neglect  to  ex- 
amine and  by  personal  observation  ascertain  the  knowledge  of 
those  facts  of  which  they  are  presumably  conversant.  "  It  is 
not  to  be  supposed,"  says  Richardson,  C.  J.,  "  that  any  man 
who  wishes  to  purchase  land  honestly,  will  buy  it  without 
knowing  what  are  the  claims  of  a  person  who  is  in  the  open 
possession  of  it.     It  is  reasonable,  if  men  buy  in  such  cases 

Maghee    V.    Robinson,    98    111.    458;  49  Pomeroy    v.    Stevens,    11    Met. 

Pinney    v.    Fellows,      15    Vt.    525;  244;    Glass   v.   Hurlbut,    102   Mass 

Hackett    V.    Callender,    32    Vt.    97.  34;  Clark  v.  Bosworth,  51  Me.  528 

The  rule  is  the  same  both   at   law  50  Pinney  v.  Fellows,  51  Vt.  525 

and  in  equity:     Griswold  v.  Smith,  Russell    r.    Sweezy,    22   Mich.    235 

10  Vt.  454.  Redden  V.  Miller,   95  111.  336;   Per 

47  Russell  v.  Sweezy,  22  Mich.  kins  v.  Swank,  43  Miss.  349 
235;  Warren  v.  Richmond,  53  111.  O'Rourke  V.  O'Conner,  39  Cal.  442 
52.  Happin   v.  Doty,  25  Wis.  573;  Ed 

48  Peek  v.  Clapp,  98  Pa.  St.  581.       wards  v.  Thompson,  71  N.  C.  177. 


726  ABSTRACTS    OF    TITLE. 

without  inquiry,  that  they  should  be  presumed  to  have  known 
everything  which  they  might  have  learned  upon  due  in- 
quiry," 51  "  and  one  important  evidence  of  title  to  an  improved 
estate,"  continues  Shepley,  J.,  "  is  the  possession  of  it.  When 
one  person  purchases  of  another  who  is  not  in  possession,  he 
is  put  upon  inquiry  into  the  cause  of  such  apparent  defect  of  a 
perfect  title."  52  When  land  is  vacant  or  unoccupied,  no  pre- 
sumption can  arise  against  the  legal  or  record  title.53. 

§  609.  Continued  —  Mechanics'  Liens.  It  has  been 
held  in  a  late  case,54  that  a  party  purchasing  land  on  which 
buildings  are  in  process  of  erection,  having  knowledge  of  the 
same,  is  bound  to  make  inquiry  as  to  the  rights  of  parties 
furnishing  materials  or  performing  work  thereon,  and  that 
such  person  is  charged  with  constructive  if  not  actual  notice 
of  their  lien.  Further,  that  a  sale  of  property  after  the  lien 
is  fixed,  to  one  cognizant  of  the  fact,  gives  him  no  rights  as 
against  the  lien.  This  is  in  consonance  with  the  general 
doctrine  on  the  subject  of  mechanics'  liens,  which  provides 
that  the  lien  shall  take  effect  from  the  time  of  the  commence- 
ment of  the  work,  and  that  no  sale  or  transfer  thereafter  is 
sufficient  to  divest  it.55  It  follows,  therefore,  that  an  inquiry 
respecting  possible  liens  should  always  be  made  and  that  the 
attention  of  prospective  purchasers  should  be  directed  thereto. 

§  610.  Continued  —  Easements  and  Servitudes.  In 
addition  to  all  the  recommendations  heretofore  made,  it  is 
further  suggested  that  an  actual  inspection  of  the  premises 
be  had  for  the  express  purpose  of  ascertaining  whether  there 

51  Pritchard  V.  Brown,  4  N.  H.  held  the  legal  title  when  the  work 
397;  Russell  v.  Ransom,  76  111.  168.  was     commenced,     and     he     is     not 

52  Matthews  V.  Demerritt,  22  Me.  bound  to  inquire  further  or  take 
312.  notice    of    any    subsequent    eonvey- 

53  White  v.  Fuller,  38  Vt.  201;  ances  of  the  property :  Fourth  Ave. 
Thompson  V.  Burhans,  79  N.  Y.  Bap.  Church  V.  Schreiner.  88  Pa.  St. 
93;    Weir   v.  Lumber   Co.,   186   Mo.  124. 

388.  55Dunklee    v.    Crane,    103    Mass. 

54  Austin  v.  Wohler,  5  Bradw.  470;  Thielman  v.  Carr,  75  111.  385; 
(111.  App.)  300.  A  mechanic  may  Mehan  v.  Williams,  2  Daly  (N.  Y.), 
file  his  lien  against  the  person  who  367. 


OPINIONS    OF   TITLE.  727 

are  any  servitudes  resting  upon  the  land  that  have  not  been 
disclosed  by  the  abstract.  This,  at  first  blush,  may  seem  an 
unnecessary  and  useless  proceeding,  yet  there  are  many  con- 
ditions and  circumstances  that  not  only  justify  such  a  course, 
but  render  it  an  imperative  duty.  It  is  true  that,  as  a  rule, 
a  claim  for  an  easement  must  be  founded  upon  a  grant  by 
deed,  yet  an  easement  may  pass  by  implication,  when  its 
existence  is  necessary  to  the  enjoyment  of  that  which  is  ex- 
pressly granted  or  reserved,  upon  the  principle  that  where 
one  grants  anything  to  another,  he  thereby  grants  him  the 
means  of  enjoying  it,  whether  expressed  or  not.56 

This  is  well  illustrated  in  the  rule  of  the  common  law  which 
provides  that,  where  the  owner  of  two  heritages,  or  of  one 
heritage  of  several  parts,  has  arranged  and  adapted  them  so 
that  one  derives  a  benefit  or  advantage  from  the  other  of  a 
continuous  and  obvious  character,  and  then  sells  one  of  them 
without  making  mention  of  these  incidental  advantages  or 
burdens  of  one  in  respect  to  the  other,  there  is,  in  the  silence 
of  the  parties,  an  implied  understanding  and  agreement  that 
the  advantages  and  burdens,  respectively,  shall  continue  as 
before  the  separation  of  the  title.57 

But  in  order  that  an  easement  should  pass  by  implication, 
under  the  grant  of  an  estate,  it  must  be  obvious  to  any  observer, 
while  an  apparent  sign  of  servitude  must  be  impressed  upon 
the  servient  estate :  in  other  words,  the  marks  of  the  burden 
must  be  open  and  visible.58  Where  these  conditions  exist, 
their  effect  upon  the  servient  estate  is  frequently  productive  of 
results  that  the  purchaser  neither  anticipated  nor  intended, 
but  of  which  he  might  have  been  fully  apprised  had  proper 
inquiry  and  examination  been  made  prior  to  the  acceptance 
of  the  title. 

The  foregoing  remarks  are  particularly  true  with  regard 
to  city  property  or  property  in  populous  neighborhoods,  where 

56  Lanier  v.  Booth.  50  Miss.  410;  Jones  v.  Jenkins,  34  Md.  1,  and  see 
Pingree  V.  McDufFe.  56  N.  H.   306;        Wash.  Easement,  58. 

Dillman  v.  Hoffman,  38  Wis.  550.  58  Butterworth    v.    Crawford,    46 

57  Morrison   v.   King,   62   111.   30;       N.  Y.  349. 
Lampman  v.  Milks,  21   N.   Y.  505; 


728  ABSTEACTS    OF    TITLE. 

buildings  and  improvements  crowd  and  encroach  upon  each 
other,  pfttimes  disclosing,  upon  even  a  casual  inspection,  all 
the  marks  of  servitude,  and  thereby  charging  the  purchaser 
with  notice  of  their  existence.59  Where  any  doubts  exist  with 
respect  to  lines,  courses  or  dimensions,  a  survey  should  be  had 
to  fix  boundaries. 

§  611.  Continued  —  Homestead.  It  will  be  remem- 
bered that  in  several  of  the  States  the  right  of  homestead  is 
a  special  estate  requiring  a  special  release  to  divest,  and  in 
other' States,  where  it  is  regarded  merely  as  a  statutory  right 
of  exemption,  certain  formalities  are  expressly  necessary  to 
a  waiver.  Where  such  laws  obtain,  and  the  deeds  make  no 
reference  to  the  homestead,  even  though  the  possession  of  the 
land  is  shown  to  be  in  the  parties  -conveying,  a  further  in- 
quiry should,  it  would  seem,  be  made  with  respect  to  the  char- 
acter of  the  possession,  and  a  special  release  or  waiver  of 
the  homestead  right  should  be  obtained  when  such  inquiry 
expressly  or  impliedly  discloses  a  homestead  occupancy.60 

§  612.  Printed  Copies.  When  large  subdivisions  are 
made  for  general  sale  to  purchasers  of  small  lots,  it  has  now 
become   customary   to   duplicate   the   original   abstract   to   the 

59  So  held  where  the  owner  of  gave  notice  of  an  intention  to  close 
lands  divided  the  same  east  and  up  the  flue,  whereupon  the  plaintiff 
west  and  erected  a  building  on  the  filed  his  bill  to  enjoin  the  act:  In- 
north  part,  placing  the  south  wall  gals  V.  Plamondon,  75  111.  118. 
half  on  each  side,  with  a  flue  pro-  60  Printed  blank  forms  of  con- 
jecting  eight  inches  on  the  south  veyance  generally  contain  a  home- 
lot,  which  was  used  to  carry  off  the  stead  waiver,  and  this  is  also  a  part 
smoke  from  a  furnace  permanently  of  the  form  prescribed  for  statutory 
attached  in  the  building,  the  flue  deeds,  but  where  forms  are 
being  necessary  to  the  use  of  the  draughted  for  special  occasions  the 
furnace;  the  flue  stood  exposed  to  waiver  is  generally  omitted  when 
view  with  chimney  thereon,  and  the  the  lands,  in  fact,  are  not  occupied 
owner  sold  the  north  portion  of  the  as  homesteads.  In  subsequent  ex- 
lot  to  the  center  of  the  south  wall,  aminations  this  course  frequently 
with  the  building  thereon,  to  the  raises  embarrassing  questions  and 
plaintiff,  and  afterward  sold  the  the  better  plan  is  to  insert  the 
south  half  of  the  lot  to  the  defend-  waiver  in  all  deeds  regardless  of  the 
ant,  who  contributed  to  the  expense  actual  facts, 
of   the   party   wall,   and   the    latter 


OPINIONS    OF    TITLE.  729 

entire  tract  by  printed  copies.  This  is  done  to  avoid  the  ex- 
pense of  a  separate  search  for  each  lot  of  the  subdivision 
as  well  as  a  scrivener's  copy  of  the  original,  and  it  is  claimed 
that  such  printed  copies  are  far  more  reliable  and  trustworthy 
than  where  a  written  copy  is  made  from  the  original  for 
every  transfer.  Where  the  work  is  performed  conscientiously 
and  carefully  this  is  probably  true,  yet  the  great  majority  of 
the  profession  have  set  their  faces  strongly  against  the  use 
of  printed  copies  and  many  lawyers  refuse  to  pronounce  upon 
a  title  disclosed  by  them,  unless  the  original  is  also  produced 
at  the  same  time  for  comparison  and  inspection.  This  strongly 
grounded  prejudice  arises  from  the  fact  that  the  temptation 
for  the  interpolation  of  foreign  matter,  or  the  suppression 
or  expurgation  of  original  matter  is  so  great,  that  unscrupulous 
parties  not  infrequently  do  not  hesitate  to  resort  to  such  ex- 
pedients to  conceal  the  defects  of  imperfect  title. 

A  printed  copy,  if  made  by  an  honorable  and  responsible 
person,  who,  at  the  close  of  such  copy  appends  a  certificate 
of  verification,  loses  some  of  its  objectionable  features,  yet 
this  is  but  a  poor  protection,  as  the  printer  merely  presents 
what  he  finds,  and  if  foreign  matter  has  been  introduced 
into  the  original  it  will  of  course  be  reproduced  in  the  dupli- 
cate. Nor  does  the  fact  that  a  comparison  of  such  duplicate 
with  the  original  has  been  made  by  a  notary,  and  of  which 
fact  a  certificate  under  his  hand  and  official  seal  accompanies 
the  copy,  make  the  copy  much,  if  any,  more  reliable.  In 
botli  of  these  instances  the  opportunities  for  fraud  and  im- 
position are  present,  while  ignorance,  carelessness,  mistake  and 
accident  may  all  conspire,  where  no  bad  faith  exists,  to  render 
such  copy  inaccurate  and  unreliable. 

But  as  printed  copies  will  continue  to  be  used,  and  as  in 
many  instances  the  cost  of  an  original  abstract  would  be  equal 
to  the  price  of  the  land,  care  should  be  observed  to  see  that 
every  precaution  has  been  taken  to  insure  the  reliability  of 
such  copy  and  prove  its  accuracy.  This  can,  in  a  large 
measure,  be  successfully  accomplished  by  a  verification  of  the 
printed  copy  by  the  examiner  who  compiled  the  original,  and 


730  ABSTRACTS    OF    TITLE. 

it  is  recommended  that,  in  every  instance  where  a  printed  copy 
is  offered  in  support  of  title,  a  comparison  be  first  made  by 
the  examiner,  and  a  certificate  under  his  hand,  that  same  is 
a  true  copy,  be  appended  thereto.  To  insure  further  accuracy 
the  examiner  should  write  his  name,  or  at  least  his  initials, 
upon  every  page  or  sheet  of  the  copy,  and  if  after  all  this, 
imposition  is  still  practiced,  counsel  will  at  least  have  the 
satisfaction  of  knowing  that  the  imposition  was  beyond  his 
power  to  prevent  and  that  he  has  fully  performed  his  duty 
in  the  matter.61 

A  certificate  of  verification  should  fully  identify  the  copy 
to  which  it  is  annexed  by  proper  references  to  the  original 
and  should  unmistakably  state  the  primary  fact  of  correctness. 
If  any  divergence  from  the  original  is  shown  this  should  be 
noted  and  if  corrections  are  made  in  the  copy  these  also  should 
be  indicated.     The  following  will  serve  as  an  illustration: 

The  foregoing  seventeen  (11)  pages  (this  included)  is  a 
true  copy  of  the  original  examination  of  title  except  [here 
note  differences,  if  any,  as;  that  sundry  words  abbreviated 
in  the  original  are  printed  in  full  in  this  copy  and  sundry 
words  written  in  full  in  the  original  are  abbreviated  in  this 
copy]  Corrections  Nos.  1  to  lf.0  inclusive,  in  red  ink,  made 
by  us.  Handy  &  Company. 

§  613.  Framing  Opinions.  After  the  abstract  has  been 
thoroughly  perused,  the  inquiries  answered,  the  requisitions 
satisfactorily  supplied,  and  the  relative  rights  of  parties  de- 
termined, counsel  should  proceed  to  formulate  his  opinion  in 
a  connected  and  orderly  manner.  This  will  include:  first,  a 
concise  caption  or  title,  similar  to  that  which  prefaces  the 
abstract,  describing  the  object  and  purport  of  the  opinion. 
Then  follows  the  result  of  his  investigations,  and  here  should 
be  stated  all  the  defects  and  irregularities  which  he  may  deem 


61  For  a  more  extended  discussion       able     abstract     see     Warvelle     on 
as  to  what  constitutes  a  merchant-       Vendors,  §  292,  et  seq. 


OPINIONS    OF    TITLE.  731 

worthy  of  notice  as  affecting  the  title.  Finally  comes  the 
formal  opinion,  which  should  be  as  concise  and  terse  as  pos- 
sible, and  based  upon  the  abstract  and  the  defects  or  other 
matters  noted  in  the  stating  part  of  the  opinion.  Should  the 
exigencies  of  the  case  require  it,  or  the  client  so  direct,  counsel 
may  add  such  directions  or  suggestions  as  to  him  may  seem 
expedient  in  perfecting  what  the  abstract  shows  to  be  an 
imperfect  title,  but  it  is  suggested  that  the  better  way  is  to 
communicate  such  information  or  directions  together  with  any 
hypothetical  opinions,  by  a  separate  writing,  and  confine  the 
opinion,  which  it  is  proposed  to  annex  to  the  abstract,  solely 
to  the  state  of  the  title  which  the  abstract  presents. 

Another  method,  and  one  that  is  preferred  by  many  lawyers, 
is  to  state  the  general  opinion  first  and  then  to  follow  with 
a  recital  of  the  defects  or  imperfections  of  title  which  qualify 
the  opinion.  Either  method  will  serve  to  apprise  the  client 
of  the  condition  of  the  title. 

§  614.  Opinions  of  Title.  A  formal  opinion  upon  the 
merits  of  the  proffered  title  does  not  seem  to  have  been  con- 
templated by  the  English  writers  on  the  subject  of  abstracts, 
nor  by  those  American  writers  who  have  heretofore  ventured 
to  touch  upon  the  theme,  and  this  feature  is  doubtless  an 
outgrowth  of  "  western  civilization."  The  queries,  objections, 
requisitions,  etc.,  of  an  English  examiner  in  a  measure  take 
the  place  of  a  formal  opinion,  as  they  tend  to  note  and  point 
out  defects  and  make  suggestions  whereby  defects  may  be 
remedied  and  missing  links  supplied.  But,  as  abstracts  are 
now  prepared,  a  carefully  framed  opinion  is  an  inseparable 
incident  and  a  fitting  climax  of  every  examination. 

There  are  two  methods  of  framing  opinions  of  title,  both 
of  which  are  in  general  use.  The  first,  and  most  common, 
consists  of  statements  based  upon,  and  annexed  to,  a  formal 
abstract,  and  is  made  by  counsel  after  a  perusal  thereof;  the 
second,  is  where  the  examiner,  after  investigating  the  title, 
by  personal  examination  of  the  records  or  of  his  own  indices 
thereto,  places  the  title  in  some  individual  named  subject  to 
whatever   impairments   he  may   find    of  record.      This   latter 


732  ABSTRACTS    OF    TITLE. 

method  is  also  known  as  "  certifying  the  title."  No  chain 
or  affirmative  evidence  is  usually  shown  in  such  cases.  Fre- 
quently such  certificate  is  based  upon  a  directed  assumption 
of  title  in  a  certain  person  at  a  certain  date,  and  the  examiner 
certifies  from  his  examination  of  the  records  from  such  date. 
In  the  latter  case,  the  certifier  assumes  the  dual  office  of  ex- 
aminer and  attorney,  and  in  many  cities,  where  no  special 
class  of  examining  conveyancers  or  abstract  makers  exists, 
all  abstracts  and  examinations  are  made  in  this  manner.  The 
plan  has  little  to  recommend  and  much  to  condemn  it,  and, 
in  the  opinion  of  the  writer,  more  satisfactory  results  are  ob- 
tained, at  least  in  populous  and  active  cities,  by  a  thorough 
disassociation  of  abstract  maker  and  counsel.62  An  opinion 
of  title  made  in  the  manner  just  described  would  be  prepared 
somewhat  in  the  following  manner: 

OPINION  OF  TITLE  ' 

%  to 

Lots  11  and  18,  Block  3,  Town  of  Hyde  Park,  Cook  County, 

Ills. 


By  direction  of  William  P.  Smith,  at  whose  request  this 
opinion  is  given,63  it  is  assumed  without  examination ,64  that 

62  Possibly  the  writer's  experi-  part  of  brokers  and  real  estate  deal- 
enee  has  tended  to  prejudice  him  in  ers  to  eliminate  law  and  lawyers 
favor  of  a  system  with  which  he  from  transactions  relating  to  land 
has  long  been  familiar,  but  from  and  to  restore  the  old  conditions  of 
what  he  has  seen  of  "  Certificates  of  primitive  simplicity  in  which  law- 
Title,"  he  is  strongly  inclined  to  vers  and  abstract  makers  are  un- 
condemn  their    use.     Of   late   years  known. 

and  in  some  localities  an  effort  has  63  This  is  a  matter  of  protection 

been  made  by  law  to  abolish  the  old  to    the    examiner.      It     shows     the 

and  well   settled   system  of  record-  privity  of  contract  existing  between 

ing    titles,    by   the    introduction    of  client    and    counsel,    and     prevents 

the    crude   methods    of    some    Euro-  claims   for   damages   being  asserted 

pean  countries.     By  this  innovation,  by  third  parties,  who  may  have  pur- 

usually  called  the "  Torrens  System,"  chased    or   advanced   money   on   the 

a   Certificate   of  Title   is    issued   by  assurances    of   the   certificate:     See 

an  officer  having  the  superintendence  Bank  v.  Ward,  100  U.  S.  195. 

of   a   transfer   register.     The   move-  64  In  every  case  where  an  assump- 

ment  seems  to  be  an  effort  on  the  tion  is  made  it  should  be  so  stated, 


OPINIONS    OF    TITLE.  733 

on  June  11,  1810,  the  Trustees  of  the  Town  of  Hyde  Pari-  held 
the  title  to  the  fee  of  said  Lots  17  and  18,  free  from  incum- 
brance. From  an  examination  of  the  records  of  Cook  County, 
Ills.,  (or,  of  our  Indexes  to  the  Records,  etc.)  of  Deeds,  Judg- 
ments, and  Tax  Sales,  made  upon  the  above  stated  assumption, 
we  conclude  that  the  title  to  the  fee  of  said  Lots  is  now  vested 
in  John  F.  Hanson,  subject  to  defects,  if  any,  existing  in  the 
execution  or  acknowledgment  of  the  following  deed:  for;  sub- 
ject to  the  lien  of  the  following  mortgage,  etc.) 

Here  follows  an  abstract  or  summary  of  the  deed,  mortgage, 
lien,  judgment  or  other  matter,  which,  in  the  opinion  of  the 
person  certifying,  impairs  or  clouds  the  title  of  the  individual 
named  in  the  certificate.  If  nothing  appears  to  impair  the 
title,  say : 

Subject  to  no  objection  indicated  by  our  books. 

or, 

Subject  to  no  objection  indicated  by  the  public  records. 

After  this,  any  special  matter  by  way  of  qualification  or 
explanation  may  be  inserted  which  should  be  followed  by  the 
date  of  the  examination  and  the  examiner's  signature.  In 
these  certificates  a  wide  option  is  left  with  the  examiner,  and 
in  this  lies  the  chief  source  of  danger.  He  may  regard  or 
disregard  all  such  instruments  as  he  may  see  fit,  passing  not 
only  on  their  formal  sufficiency,  but  their  legal  effect  as  well, 
and  that  without  displaying  them,  or  displaying  only  such  of 
them  as,  in  his  opinion,  create  liens  or  incumbrances  upon  the 
title. 

Should   the   examiner   desire   to  qualify   his   opinion,    as   is 

while  it  is  always  advisable  to  state  notice  that   the  examination   is   im- 

as  well  that  same  has  boon  done  by  perfect    on    certain    recognized   theo- 

direction   and  often  at   whoso  direc-  ries  of  the  law  of  conveyancing  and 

tion.     This  is  a  direct  and  positive  registration. 


731  ABSTRACTS    OF    TITLE. 

frequently   the   case,   this   may   be   done   by   a   statement   sub- 
stantially as  follows: 

This  opinion  is  not  to  be  construed  as  covering: 
1st.     Any  matter  or  tiling  not  noted  on  our  indexes  to  rec- 
ords in  Cook  County,  III.,  of  deeds,  judgments,  and  tax  sales, 
and  especially  unpaid  taxes  and  adverse  possession. 
2nd.     Any  other  matter  or  thing,  etc'. 

§  615.  Continued  —  Certificates  of  Title.  A  striking 
instance  of  the  subject  under  discussion  is  furnished  by  a  late 
Missouri  case,05  wherein  the  examiner  compiled  an  abstract 
in  which  he  certified  that,  "  as  per  the  county  records  and  the 
county  index  to  said  records,"  the  title  to  the  land  in  question 
was  "  good  "  on  the  day  of  the  date  of  such  abstract  in  one 
Daniel  Cobb,  "  and  that  there  was  no  incumbrance  thereon,  nor 
any  lien  thereon  excepting  for  certain  taxes  therein  specified." 
As  a  matter  of  fact  a  trust  deed  was  then  of  record  purporting 
to  convey  the  subject-matter  of  the  examination,  but  executed 
by  one  who  at  the  time  had  no  record  title,  although  he  after- 
ward acquired  same,  and  this  subsequently  acquired  title  was 
that  which  the  examiner  had  certified  as  "  good "  in  Daniel 
Cobb,  the  second  grantee.  The  examiner  in  this  case  admitted 
that  he  was  wholly  ignorant  of  the  existence  of  the  prior  deed, 
but  attempted  to  justify  upon  the  ground  that  a  deed  recorded 
before  the  grantor  has  any  record  title  may  be  safely  dis- 
regarded in  examinations  of  title,  under  the  system  of  regis- 
tration and  notice  adopted  in  the  United  States,  and  upon 
this  point  the-  case  turned  in  the  appellate  court.  Upon  a 
question  of  this  character  the  examiner  can  afford  to  take  no 
chances.  The  law  is  so  difficult ;  the  exceptions  to  its  rules 
so  numerous ;  the  cases  so  many  and  so  slightly  distinguished, 
so  often  apparently  conflicting,  that  the  risk  is  too  great,  unless 
he  is  also  willing  to  assume  the  liability  that  may  attach  to 

65  Dodd   v.  Williams,  3  Mo.  App.     278.       Consult    in    this    connection, 
Bank  v.  Ward,  100  U.  S.  195. 


OPINIONS    OF    TITLE.  735 

it.  What  constitutes  a  lien  or  incumbrance  upon  real  estate 
may  in  some  instances  be  a  difficult  question  to  decide;  "but 
an  examiner  of  titles,"  says  Bakewell,  J.,CG  "  is  bound  to  know 
the  state  of  the  law  on  the  subject,  and,  where  there  may  be  a 
reasonable  doubt  as  to  whether  such  or  such  a  recorded  instru- 
ment is  a  lien,  if  he  chooses  to  resolve  the  doubt  he  does  so  at  his 
own  peril.  *  *  *  If  he  does  not  choose  to  assume  this 
liability  he  may  easily  avoid  it  by  noting  in  his  certificate 
every  question  which  arises  upon  the  title  as  to  which  there 
can  be  the  slightest  doubt  in  the  legal  mind,  or  by  giving  a 
list  of  deeds  and  incumbrances,  and  abstaining  from  expressing 
any  opinion  as  to  their  legal  effect." 

§  616.  Opinions  based  upon  the  Abstract.  As  a  rule 
few  lawyers  desire  to  have  anything  to  do  with  the  compila- 
tion of  the  abstract,  further  than  such  incidentals  as  necessarily 
result  from  the  inquiries,  requisitions  and  objections  made 
upon  the  title.  The  assumption  of  the  dual  character  of 
examiner  and  counsel  can  rarely  be  successfully  accomplished, 
for  an  attorney  competent  to  pass  upon  the  grave  questions 
so  often  presented  can  hardly  spare  from  his  practice  the 
time  which  must  be  consumed  in  the  preparation  and  proper 
keeping  of  indices,  nor,  even  when  public  indices  are  available, 
the  time  necessary  for  a  proper  search;  while  an  examiner 
who  makes  a  business  of  furnishing  abstracts  does  not,  and 
from  the  very  circumstances  of  his  business  can  not,  devote 
the  time  necessary  to  keep  up  a  theoretical  knowledge  of  the 
law  applicable  to  examinations  of  title,  while  he  is  entirely 
deficient  in  that  fine  legal  acumen  that  comes  only  from  direct 
and  personal  experience  in  the  e very-day  walks  of  a  lawyer's 
life.  The  examiner,  by  constant  practice,  becomes  very  ex- 
pert in  compilations,  far  more  so  than  a  lawyer  making  occa- 
sional searches  can  ever  hope  to  be,  but  by  constantly  directing 
his  attention  only  to  requisites  and  defects  of  form  in  instru- 
ments and  proceedings  which  pass  under  his  hands,  and  though 
becoming,  so  far  as  relates  to  such  matters,  an  authority,  he 

ocDodd  v.  Williams,  3  Mo.   App.    278. 


736  ABSTRACTS    OF    TITLE. 

yet  loses  sight  of  much  of  the  legal  effect  of  such  instruments 
and  proceedings,  and  for  this  reason,  if  none  other,  should 
never  attempt  an  opinion. 

The  opinion  of  counsel  is  based,  in  the  first  instance,  upon 
the  presumption,  necessarily  entertained,  that  the  examiner 
has  faithfully  performed  his  work  and  that  the  abstract  is  a 
true  reflex  of  the  records,  and  of  every  matter  and  thing  shown 
thereby  that  apparently  affects,  impairs  or  implicates  the  title 
under  consideration.  It  may  be  confined  to  a  bald  statement 
of  the  title  shown  by  such  abstract,  with  no  comments  or 
suggestions,  or  it  may  indicate  the  weakness  of  the  title  with 
recommendations  for  strengthening  same.  But,  inasmuch  as 
the  client  frequently  seeks  professional  aid  quite  as  much  for 
advice  and  assistance  in  perfecting  a  title,  this  matter  will 
depend  largely  upon  the  client's  wishes. 

In  the  event  just  indicated,  the  perusal  and  analysis  will 
possibly  suggest  many  inquiries,  which,  unless  remedied  before 
the  opinion  is  rendered,  must  find  adequate  expression  therein 
and  where,  upon  a  continuation,  former  opinions  have  sug- 
gested acts  to  be  clone,  the  continuation  should  show  compliance 
with  such  suggestions.  Where  the  title  is  defective  from  any 
cause  capable  of  easy  remedy,  as  where  missing  deeds  are 
found  upon  inquiry,  or  satisfactory  information  is  furnished 
in  answer  to  requisitions,  the  several  matters  should  be  placed 
on  record  and  a  supplemental  abstract  made  covering  such 
special  matter.  Upon  the  original  and  supplemental  abstract 
the  opinion  may  be  rendered,  and,  if  all  doubts  have  been 
resolved  thereby,  such  opinion  would  consist  of  little  else  than 
a  statement  that  the  fee  of  the  premises  rests  in  whoever  is 
shown  to  be  the  owner,  unincumbered  and  unembarrassed. 
More  frequently,  however,  counsel  prefer  to  recite  the  ob- 
jectionable features,  and  qualify  the  opinion  by  reference  to 
such  recitals,  leaving  the  client  to  accept  or  reject  the  title, 
as  his  inclination  may  suggest,  or  take  steps  to  perfect  it  in 
accordance  with  the  opinion.  When  such  is  the  case  an  opinion 
mav  be  rendered  somewhat  after  the  following  manner : 


OPINIONS    OF    TITLE.  737 

opinio:;  of  title 

to 
Lot  10,  in  Block  1+0,  of  Simpson's  subdivision  of  the  N.  E. 
qr.  of  Sec.  10,  T.  12  N.,  R.  13  E.,  as  disclosed  by  the  an- 
nexed abstract,  made  by  Haddock,   Vallette  and  Rickcords, 
and  dated  Aug.  15,  1883. 


I  have  examined  the  annexed  abstract,  consisting  of  twenty- 
three  numbers,  relative  to  the  title  thereby  disclosed  to  the 
premises  above  and  in  said  abstract  described,  and  find: 

A  defective  deed,  shown  as  No.  10  from  Thomas  Jones  and 
Olivia,  his  wife,  to  Cyrus  B.  Maxwell,  in  that  said  Olivia 
failed  to  release  her  dower  in  the  manner  then  (181+2)  pre- 
scribed by  law. 

A  defective  deed  shown  as  No.  18,  from  Benson  Hardy  to 
William  J.  Hanson,  in  that  the  wife  of  said  Hardy,  she  having 
been  shown  to  be  then  and  still  living,  failed  to  release  her 
dower  by  joining  in  the  execution  of  said  deed. 

A  mortgage  for  $500.00,  shown  as  No.  19,  from  William 
J.  Hanson  to  Thomas  Jackson,  the  indebtedness  thereby  se- 
cured maturing  Jan.  31,  1889. 

I  further  find: 

No  releases  or  waivers  of  the  right  of  dower  purporting  to 
be  made  by  Olivia  Jones  or  the  wife  of  Benson  Hardy,  shown 
by  said  abstract  to  be  of  record  in  this  county. 

No  release  or  discharge  of  the  mortgage  above  noted. 

And  I  am  of  the  opinion: 

That  conveyance  No.  10  creates  no  lien,  cloud,  or  charge 
upon  the  title,  and  that  the  defect  noted  is  cured  by  the  lapse 
of  time  and  the  possession  of  the  therein  mentioned  grantors' 
assigns;  it  satisfactorily  appearing  that  Thomas  Jones  has 
been  dead  for  more  than  twenty  years. 

That  conveyance  No.  IS  discloses  a  conthig"nt  lien  or  charge 
upon  the  title  to  the  extent  of  the  inchoate  right  of  dower  of 
the  wife  of  Benson  Hardy. 

That   the   mortgage,  No.    19,   is  a  valid  subsisting  incum- 
brance. 
47 


738  ABSTRACTS    OF    TITLE. 

I  am  further  of  the  opinion: 

That  the  title  to  the  fee  of  said  premises  is  now  vested  in 
William  Springer,  free  from  all  liens,  charges  and  incum- 
brances appearing  of  record,  and  shown  by  said  abstract,  except 
those  hereinabove  expressly  enumerated  and  described. 

To  perfect  the  title  of  said  Springer,  I  would  recommend: 

A  deed  of  release  from -the  wife  of  Benson  Hardy. 

A  deed  of  release  from  Thomas  Jackson,  said  mortgagee,  or 
li  is  assigns. 

(Signed) 

THOMAS  W.  BROWN, 

Date.G7  Counsel. 

The  foregoing  crude  outline  will  serve  to  suggest  a  form  for 
the  expression  of  opinions,  and  the  general  manner  in  which 
such  opinions  should  exhibit  the  defects  of  the  title.  It  is 
necessarily  brief,  and,  for  the  better  purposes  of  illustration, 
very  simple,  yet  will  indicate  the  method  of  treatement  of  more 
difficult  and  complicated  matters. 

A  more  concise  and  terse  way  of  preparing  an  opinion  would 
be  to  find  the  fact  of  title  first  and  then  show  defects,  if  any. 
Should  such  a  course  be  deemed  desirable  the  certificate  may 
be  constructed  after  the  following  form: 

I  have  examined  the  annexed  abstract,  etc.,  and  am  of 
opinion,  that  the  title  to  the  fee  of  said  Lot  was  on  Aug.  15, 
1883,6S  vested  in  one  William  Springer,  subject  to  the  follow- 
ing liens  and  defects. 

Then  set  out  the  impairments  of  title,  with  such  recommen- 
dations as  may  be  thought  necessary  or  expedient. 

Where  the  abstract  consists  of  several  continuations,  made 
by  the  same  or  different  examiners,  it  may  be  well  to  preface 

67  This  should  be  the  same  date  actual  time  at  which  the  opinion 
as  that  appended  to  the  certificate       was  rendered. 

of  the   abstract,   irrespective  of  the  68  The   date  of  the   certificate   of 

the  abstract. 


OPINIONS    OF    TITLE.  739 

the  opinion  with  a  recital  of  the  different  examinations  under 
consideration,  thus : 

/  have  examined  what  purports  to  be  an  examination  of  title 
by  Handy,  Simmons  &  Co.,  from  the  government  to  date  of 
June  10,  1872. 

A  continuation  [or,  a  certified  copy  of  continuation^  of 
same  by  Haddock,  Coxe  &  Co.,  to  date  of  April  20,  1879. 

A  continuation  by  Chicago  Title  and  Trust  Company  to 
date  of  July  1,  1903,  and  find,  etc. 

If  the  abstract  itself,  for  any  reason,  is  not  merchantable,69 
it  is  better  to  apprise  the  client  of  this  defect  before  attempting 
to  make  a  perusal,  that  proper  steps  may  be  taken  to  remedy 
the  defect,  but  should  the  client  be  willing  to  accept  the  ab- 
stract as  furnished  and  direct  an  opinion  thereon,  prudence 
would  suggest  that  counsel  specifically  note  this  fact  in  his 
opinion,  as  for  instance: 

The  continuation  purporting  to  be  made  by  Haddock,  Coxe 
&  Co.,  under  date  of  April  20,  1879,  I  consider  unmerchant- 
able, in  that  it  appears  to  be  a  copy  and  not  an  original,  and 
is  without  proper  certification;  but  by  direction  of  Robert 
Smith,  Esq.,  for  whom  this  opinion  is  made,  I  assume  that 
it  is  a  true  copy,  and  this  opinion  is  expressly  subject  to  and 
qualified  by  undisclosed  defects  of  title,  if  any,  during  the 
period  covered  by  said  search. 

It  is  customary,  and  quite  proper,  to  add  certain  directions 
or  suggestions  as  aids  to  the  purchaser  in  making  inqirirs 
in  pais  or  with  respect  to  matters  not  covered  by  the  examina- 

69  This  term  has  now  come  to  be  There  are  no  rules  for  determining 
a  recognized  expression  among  law-  the  fact  of  merchantabilit y  and  the 
yers,  to  denote  an  abstract  com-  matter  rests  largely  in  general  con- 
piled  and  certified  by  a  responsible  sensus  of  opinion,  the  resolutions  of 
person  and  which  is  accepted  with-  Bar  Associations,  etc. 
out     question     by     the     profession. 


7-10  ABSTRACTS    OF    TITLE. 

tion,    and  these   suggestions   may   be   shown  by   a   note,   just 
before  the  signature,  in  this  manner: 

Note. —  The  taxes  for  1892  are  now  a  lien.10 

Satisfactory  assurance  should  be  furnished  of  the  payment 
of  taxes  for  the  year  1891.71 

Attention  is  directed  to  the  present  occupation  of  the  prem- 
ises, if  any,  and  the  rights  of  the  parties  in  possession. 

For  greater  certainty  many  lawyers  append  to  their  opinions 
a  statement  of  the  matters  not  passed  upon  and  to  which  the 
opinion  is  subject.     Thus,  they  say: 

This  opinion  is  expressly  subject  to: 

1.  Rights  or  claims  of  parties  in  possession  not  shown  of 
record. 

2.  Defects  of  title,  if  any,  which  may  be  disclosed  by  an  ac- 
curate survey. 

3.  Possible  rights  of  dower  of  the  spouse  of  owner. 

4.  Mechanic's  liens  not  shown  of  record. 

5.  Special  assessments,  if  any,  which  have  not  been  con- 
firmed. 

6.  Taxes  for,  etc. 

§  617.  Perspicuity  of  Expression.  In  every  case  the 
language  of  an  opinion  should  be  clear  and  perspicuous.  This  is 
a  prime  requisite.  Counsel  occasionally  shirk  a  direct  opinion 
by  hypothetical  statements  as  to  what  the  title  might  be  if  cer- 
tain matters  could  be  shown ;  as,  that  the  title  "  would  be 
good  in  John  Smith,  provided,"  etc.     This  can  not  be  regarded 

70  This   is  a  sort  of  reminder  to  71  This  should  be  inserted  in  opin- 

the  parties  for  the  purpose  of  fixing  ion  rendered  after  Dec.  1,  or  what- 

conditions  of  sale  and  should  always  ever  other  day  is  fixed  by  law  for 

be    inserted    in    opinions     rendered  the   commencement  of  the   payment 

after  May  1,  or  whatever  other  day  of  taxes  for  the  past  year.     Should 

the    statute    may    prescribe    as    the  the    abstract    disclose    payment    the 

time  of  commencement  of  lien  for  clause  should,  of  course,  be  omitted, 
the  taxes  of  the  year. 


OPINIONS    OP    TITLE.  741 

as  a  desirable  method  of  expression.     The  issue  should  be  met 
fairly. 

So  also,  the  use  of  qualifying  adjectives  in  connection  with 
title  is  very  objectionable.  Notwithstanding  the  fact  that  a 
court  of  equity  sometimes  hesitates  to  pronounce  a  title  in- 
valid that  it  yet  will  not  force  upon  an  unwilling  purchaser, 
and  hence  pronounces  it  doubtful,  there  are  no  degrees  of  ex- 
cellence in  titles.72  At  law  all  titles  are  valid  or  invalid.  It 
is  not  in  good  form,  therefore,  to  say  that  a  "  good  "  title  is 
vested  in  any  person,  for  this  implies  that  there  may  be  a 
"  better,"  and,  possibly,  a  "  best,"  while  a  "  bad  "  title  is  sim- 
ply no  title.  It  is  still  worse  to  say,  as  is  often  done,  that  A  B 
possesses  "  substantially  a  good  title,"  or,  that  the  title  is  "  sub- 
stantially good "  in  a  person  named.  As  colloquial  phrases 
such  terms  may,  and  do,  have  a  definite  meaning,  but  in  for- 
mal written  opinions  they  are  out  of  place.  The  title  should 
be  specifically  found  in  whomsoever  it  is  made  to  appear,  and  it 
must  rest  somewhere.  If  it  is  obscured,  or  insecure  in  the 
person  named,  state  the  facts  and  announce  the  legal  effect. 
There  is  no  such  thing  in  law  or  in  fact  as  a  doubtful  title 
per  se,  although  the  claim  of  an  individual  to  title  may  be  the 
subject  of  doubt.  The  fee  is  always  in  existence ;  it  is  never 
in  abeyance ;  it  is  never  without  an  owner ;  it  is  never  "  good," 
"  bad  "  or  "  doubtful."  The  evidences  of  the  rights  of  owner- 
ship may  be  all  or  either,  but  the  confusion  of  terms  some- 
times betrays  counsel  into  expressions  that  he  does  not  really 
mean.     The    term    "  marketable  title "    is    employed    by    the 

72  It  is  the  specific  claim  of  title  ownership  and  estate  may  be  made 

to  which  a  court  alludes  when  pass-  by    several,    but    unless    there    is    a 

ing  upon  its  validity.     In   common  common  tenancy  only  one  can  pos- 

parlance    we    speak    of    good    titles,  sess  it.     The  claim  of  the  others  we 

bad  titles,   and   doubtful   titles   but  often  denominate  titles;  a  palpable 

we  mean  the  claim  of  title  and  the  misnomer;  and  in  speaking  of  such 

evidence  upon   which  it   is  founded,  claims  we  frequently  say  his  title  is 

and  not  the  title  itself.     An  allodial  bad,    etc.,    meaning,    however,     the 

title   in   fee   is   the   highest   type  of  insufficiency  of   the  evidence  of  his 

ownership    and    estate,   and   this    is  claim, 
always    "  good."     A    claim    to    this 


742  ABSTRACTS    OF    TITLE. 

courts,  and  has  acquired  a  definite  legal  meaning,  yet  there  is 
nothing  gained  by  its  use  in  framing  an  opinion. 

In  a  finding  of  title  the  estate  should  always  be  mentioned. 
While  we  are  accustomed  to  speak  of  the  title  to  land  yet  this 
is  not  strictly  accurate.  It  is  the  interest  in  land,  or  the  es- 
tate, that  is  held  by  a  title,  not  the  land  itself,  and  a  properly 
framed  opinion  should  indicate  the  nature  and  extent  of  the 
interest.  To  find  that  the  title  is  vested  in  a  person  named  is 
not  enough ;  he  may  have  title,  and  a  "  good  "  title,  and  yet 
not  have  the  ultimate  ownership.  If  the  abstract  discloses  that 
the  person  named  is  possessed  of  the  fee  this  fact  should  be 
stated.  If  there  are  several  united  in  ownership  this  fact 
should  be  stated  and  the  character  of  the  estate  held  by  them, 
whether  jointly  or  in  common,  should  be  announced.  If  any 
lesser  estate  than  the  fee  is  shown,  then,  in  most  cases,  the  own- 
ership of  both  the  particular  and  the  ultimate  estates  must  be 
found. 

§  618.  Oral  Opinions.  Questions  as  to  the  propriety  or 
expediency  of  oral  opinions  in  matters  of  title  are  solely  for 
individual  solution.  It  would  seem  that  in  so  weighty  a  mat- 
ter as  the  acceptance  or  rejection  of  a  title,  if  an  opinion  is 
worth  rendering,  it  is  worth  reducing  to  writing.  It  is,  or 
should  be,  the  result  of  careful  and  critical  examination,  and 
presumably,  has  cost  counsel  many  hours  of  laborious  investi- 
gation. Whether  the  questions  presented  be  trivial  or  momen- 
tous, since  the  decision  of  the  issue  is  of  importance  to  the  in- 
tending purchaser,  is  it  well  to  leave  it  to  his  unaided  recollec- 
tion ?  Whatever  action  counsel  may  have  taken,  unless  he  pre- 
serves all  his  memoranda,  the  pressure  of  other  matters  soon 
drives  from  his  mind,  and  when,  afterward,  the  purchaser,  who 
then  entertains  but  an  indistinct  recollection  of  what  was  told 
him,  applies  to  counsel  for  information  on  some  particular 
point  connected  therewith,  counsel  can  remember  nothing 
whatever  about  it.  The  opinion,  in  such  a  case,  except  as  it 
may  have  influenced  the  sale  at  the  time  it  was  rendered,  was 
practically  useless  and  the  time  consumed  in  its  preparation,  in 
one  sense,  wasted  and  lost.     Again,  the  client  may  not  have 


OPINIONS    OF    TITLE.  743 

understood  the  opinion  as  counsel  pronounced  it,  and  a  dispute 
arises  between  counsel  and  client  as  to  the  advice  actually 
given ;  and  thus  counsel  is  drawn  into  a  controversy,  the  most 
detestable  in  which  it  is  possible  for  a  lawyer  to  be  engaged. 
All  this  can  be  avoided  by  reducing  the  opinion  to  writing. 
There  it  remains  unchanged,  with  no  chance  for  disputes  or 
misconstructions ;  always  available  when  needed ;  and  fre- 
quently a  strong  pillar  in  support  of  the  title  when  it  is  again 
placed  upon  the  market. 

§  619.  Liability  for  Erroneous  Opinions.  An  attorney 
employed  by  a  purchaser  of  real  property  to  investigate  the 
title  of  the  grantor  prior  to  the  purchase,  impliedly  contracts 
to  exercise  reasonable  care  and  skill  in  the  performance  of  the 
undertaking,  and  if  he  is  negligent  or  fails  to  exercise  such 
reasonable  care  and  skill  in  the  discharge  of  the  stipulated 
service,  he  is  responsible  to  his  employer  for  the  loss  occa- 
sioned by  such  neglect  or  -want  of  care  and  skill.  Like  condi- 
tions and  results  also  follow  an  employment  to  investigate  and 
ascertain  whether  property  offered  is  a  safe  or  sufficient  se- 
curity for  a  loan  of  money.73 

The  obligation  imposed  on  the  attorney  does  not  require  of 
him  the  possession  of  perfect  legal  knowledge  or  the  highest  de- 
gree of  skill  in  relation  to  business  of  that  character,  nor  that 
he  will  conduct  it  with  the  greatest  degree  of  diligence,  care 
and  prudence,  but  simply  that  he  shall  possess  the  ordinary 
legal  knowledge  and  skill  common  to  members  of  the  profes- 
sion;  and  that,  in  the  discharge  of  the  duties  he  has  assumed, 
he  will  be  ordinarily  and  reasonably  diligent,  careful  and 
prudent.74  This  is  the  ordinary  undertaking  of  every  attor- 
ney in  every  branch  of  legal  employment,  and  while  courts 
have  ever  been  inclined  to  exercise  leniency  in  dealing  with 

73  Addison    on    Cont.     (6th    Ed.)  74  Wharton  on   Neg.   749;    Shear. 

400;  Dodd  v.  Williams,  3  Mo.  App.  &    Eed.    on    Neg.    211;     Wells    on 

278 ;  Dundee  Mtg.  Co.  V.  Hughes,  20  Attys.    285 ;    Gambert    v.    Hart,    44 

Fed.  Rep.  39;  Houseman  v.  Girard,  Cal.    543;    Skillen    V.    Wallace,    36 

etc.,  Ass'n,  81  Pa.  St.  256;   Watson  Ind.  319. 
v.  Muirhead,  57  Pa.  St.  161". 


^44  ABSTRACTS    OF    TITLE. 

questions  of  this  character  the  rule  has  always  been  strictly 
enforced  whenever  the  facts  have  been  brought  within  its  oper- 
ation. Hence  it  follows,  as  a  necessary  sequence,  that  if  the 
attorney  fails  to  bring  to  the  discharge  of  the  duties  assumed 
by  him,  the  ordinary  legal  knowledge  and  skill  possessed  by 
members  of  the  profession,  or  has  failed  to  discharge  the  duties 
with  ordinary  and  reasonable  diligence,  care  and  prudence,  he 
will  be  guilty  of  negligence,  and  liable  to  the  client  for  the 
damages  he  may  have  .sustained  by  reason  thereof.75 

In  most  of  the  cases  where  the  question  has  been  raised  the 
errors  charged  have  related  mainly  to  the  management  of  suits, 
and  consisted  in  the  non-observance  of  established  forms  and 
legal  rules,76  and  the  damages  were  the  direct  result  of  the 
negligence  of  the  attorney.  The  rule,  however,  is  just  as  ap- 
plicable to  opinions  or  assurances  of  title  and  the  attorney  must 
be  held  to  a  strict  accountability  for  acts  of  negligence.  But 
if  he  acts  in  good  faith,  to  the  best  of  his  skill,  and  with  an 
ordinary  degree  of  attention,  he  will  not  be  responsible.77  He 
is  not  liable  for  mere  errors  of  judg-rnent,  nor  for  mistakes  of 
law  in  matters  where  the  law  is  not  well  settled.78  These  are 
general  principles  of  universal  recognition. 

In  a  case  decided  by  a  federal  court  in  Oregon,  it  was  held 
that  where  an  attorney  who  is  employed  to  examine  the  title  of 
property  offered  as  security  for  a  loan,  certifies  that  the  se- 
curity is  a  "  good "  one,  he  thereby  warrants  that  the  title 
shall  not  only  be  found  "  good  "  at  the  end  of  a  contested  liti- 
gation, but  that  it  is  free  from  any  palpable  grave  doubts  or 
serious  questions  as  to  its  validity.79     The  learned  judge  who 

75  Spangler  v.  Sellers,  5  Fed.  Rep.  79  Page  v.  Trutch,  3  Cent.  Law 
882.  Jour.   559.     There  can  be  no  doubt 

76  Spangler  v.  Brown,  26  Ohio  St.  that,  in  a  case  similar  to  the  above, 
389;  Gambert  V.  Hart,  44  Cal.  542;  it  is  understood  by  the  client  and  in- 
Skillen  v.  Wallace,  36  Ind.  319;  tended  by  the  attorney,  that  the 
Walker  v.  Goodman,  30  Ala.  482.  title  is  all  the  learned  judge  claims 

77  Wilson  v.  Russ,  20  Me.  421.  it  should  be,  but  no  authority  can 

78  Dodd  v.  Williams,  3  Mo.  App.  be  found,  so  far  as  the  investigation 
278;  Morrill  v.  Graham,  27  Tex.  of  the  writer  has  extended,  to  sus- 
646.  tain  the  statement  that  the  attorney 


OPINIONS    OF    TITLE.  Y45 

delivered  the  foregoing  opinion  does  not,  however,  fortify  it 
with  any  citations  of  authority,  and  diligent  search  fails  to 
reveal  any;  while  in  a  later  case,  decided  in  the  same  circuit, 
it  was  held  that  prima  facie  there  is  no  element  of  guaranty  in- 
volved in  such  employment;  that  the  attorney  only  undertakes 
to  bring  to  the  discharge  of  his  duty  reasonable  skill  and  dili- 
gence, and  does  not  warrant  or  guarantee  the  correctness  of 
his  work  any  more  than  a  physician  or  mechanic  does.80  It 
may  be  safely  said,  therefore,  that  the  statement  first  above 
made  does  not  present  the  true  spirit  of  the  law  in  relation  to 
the  facts  stated,  and  that  there  is  no  implied  agreement  in  the 
relation  of  counsel  and  client,  or  in  the  employment  of  the  for- 
mer by  the  latter,  that  the  former  will  guarantee  the  soundness 
of  his  opinions,  or  that  they  will  be  ultimately  sustained  by  a 
court  of  last  resort. 

A  more  strict  rule  is  observed  in  case  of  examiners,  or  where 
the  attorney  professes  to  furnish  information  as  well  as  pass 
opinions  in  connection  therewith ;  and  where  one  who  proposes 
to  make  a  specialty  of  examining  titles  in  the  course  of  his 
business  gives  a  certificate  that  he  has  made  examination  and 
finds  no  incumbrance  against  certain  property,  he  will  be  liable 
if  the  incumbrance  is  of  record  in  such  a  way  as  to  give  con- 
structive notice  to  every  one  interested  and  actual  notice  to 
every  one  looking  for  it  in  the  proper  way.81 

It  is  a  further  rule,  sustained  by  a  long  line  of  decisions, 
that  an  attorney  is  liable  for  the  negligent  performance  of  pro- 
fessional duties,  arising  from  ignorance  or  want  of  care,  only 
to  the  person  who  employed  him  —  that  is,  to  one  between 
whom  and  the  attorney  a  contract  of  service  existed.  To  in- 
sure a  recovery  for  any  injury  arising  from  mere  negligence, 
however  gross,  the  rule  seems  to  be  imperative  that  there  must 
exist  between  the  one  inflicting  the   injury   and   the  one   in- 

uarrants   the    title,    nor    to    charge  81  Dodd  v.  Williams,  3  Mo.  App. 

him  with  any  liability  upon  such  a  278;   Chase  V.  Heaney,  70   111.  308; 

warranty.  Clark    v.    Marshall,    34    Mo.    429; 

so  Dundee  Mtg.  Co.  v.  Hughes,  20  Bank  v.  Ward,  100  U.  S.  195. 

Fed.  Rep.  39.                                            .  , 


746  ABSTRACTS    OF    TITLE. 

jured,  some  privity,  by  contract  or  otherwise,  by  reason  of 
which  the  former  owes  some  duty  to  the  latter,  and  the  rule 
applies  with  full  force  to  acts  of  an  attorney  in  framing  an 
opinion  of  title.  A  third  party,  therefore,  who  may  have  acted 
upon  the  opinion  would  be  without  remedy  against  the  attor- 
ney unless  something  in  the  circumstances  of  the  case  should 
take  it  out  of  the  general  rule.S2  Malice,  fraud,  collusion  or 
other  tortious  act  would  be  sufficient  to  create  a  responsibility 
without  reference  to  any  question  of 'privity  between  the  tort 
feasor  and  the  injured  party,  but  where  these  elements  are 
wanting  no  recovery  can  be  had  by  a  third  party,  and  a  contract 
between  two  persons  will  not  be  held  to  inure  for  the  benefit  of 
a  third  person  from  the  mere  fact  that  its  breach,  or  the  neg- 
ligent discharge  of  the  duties  involved  in  it,  has  resulted  in 
injury  to  another.83 

§  620.  Conclusion.  In  bringing  this  book  to  a  close  the 
writer  perceives  many  imperfections  in  his  work,  and  feels 
that  in  abler  hands  its  treatment  might  have  been  far  differ- 
ent. Yet  he  ventures  to  express  the  hope  that  to  many  it  will 
furnish  much  desired  information  and  be  a  practical  help 
and  guide.  The  methodical  preparation  of  abstracts  of  title 
in  the  United  States  has  not  yet  passed  the  experimental  stage ; 
English  precedents  furnish  but  little  assistance,  being  founded 
upon  a  system  that  never  had  any  practical  application  in  this 
country,  and,  by  reason  of  the  peculiar  genius  of  our  institu- 
tions, never  can  have.  By  slow  degrees  we  are  formulating  a 
system  essentially  our  own,  and  if  this  work,  by  precept  or 
suggestion,  shall  be  instrumental  in  assisting  in  this  formation, 
in  discouraging  false  methods,  and  in  affording  a  light  on  ob- 
scure points  that  shall  aid  the  young  and  inexperienced,  the 
highest  desire  of  the  writer,  in  relation  thereto,  will  be  satis- 
fied. 

82  Savings    Bank    v.    Ward,    100         83  Buckley  v.  Gray,  110  Cal.  339. 
U.    S.    195;    Buckley    v.    Gray,    110 
Cal.   339. 


APPENDIX. 


NEW  ENGLAND  ABSTRACTS. 

A  peculiar  system  of  abstract  making;  seems  to  prevail  in  the 
"New  England  States,  or  certain  of  them.  This  system  is  ap- 
parently an  offshoot  from  that  now?  or  formerly,  practiced  by 
the  English  conveyancers,  and  resembles,  in  many  respects,  the 
English  abstracts  alluded  to  in  the  body  of  this  work,  particu- 
larly in  "  marginal  "  divisions.  It  is  not  the  same,  however, 
as  that  expounded  and  illustrated  by  Lee,  Moore,  and  other 
late  English  writers,  but  is  probably  a  variant  of  the  same 
general  stock.  There,  as  in  England,  though  one  plan  is  to 
show  everything  relating  to  the  title  of  the  estate  under  con- 
sideration, another,  and  the  one  apparently  in  popular  use,  is 
to  commence  with  some  early  deed  as  the  root  of  the  title,  and 
insert  after  it  a  list  of  the  conveyances  made  by  the  grantee 
to  the  point  or  time  when  the  estate  passes  out  of  him,  and  so 
continue  with  successive  grantees  until  the  present  owner  is 
reached.1 

The  instruments  are  very  fairly  and  fully  abstracted,  but 
the  examiner  indulges  in  a  wealth  of  abbreviation  unknown  to 
any  other  part  of  the  country.  It  is  arranged  very  systematic- 
ally, and,  probably,  to  those  who  are  in  the  habit  of  examining 
such  abstracts,  conveniently.  The  name  of  the  grantor,  and 
the  date  from  which  his  title  is  traced,  is  written  at  the  top  of 
the  page  and  over  the  columns  or  margins,  which  are  then 
filled  up  as  follows:  The  first  contains  the  dates,  which  include 
the  years  of  the  indexes,  and  dates  of  execution,  acknowledg- 
ment and  registration ;  the  name  of  the  officer  taking  the  ac- 
knowledgment, and  the  initials  of  each  grantor,  where  there  are 

i  See  appendix  by  M.  H.  Durgin,  to  Curtis'  well  known  "  American 
Conveyancer."      (Boston,   1871.) 

747 


us 


ABSTRACTS    OF    TITLE. 


more  than  one,  to  designate  bis  separate  conveyances.  Fol- 
lowing this  comes  the  book  and  page  of  the  record  in  two  nar- 
row columns.  In  the  next  column  are  inserted  the  names  of 
the  grantees;  consideration;  notes  of .  dower  and  homestead; 
words  of  grant ;  covenants ;  and  mention  of  formal  defects. 
In  the  last,  or  right  hand  column,  are  placed  the  descriptions ; 
notes  of  incumbrances ;  conditions,  recitals,  etc.  As  a  further 
explanation  an  example  is  appended : 

HIBAM    W.    SMITH,    GRANTOR   FROM    1822. 


1822  to  1835. 

None. 

1835-7. 

355 

210 

Win.  Jackson. 

Mtg.   $1,000,  2   vrs.      (Descrip- 
tion.)     Nov.   i0,  1837.     Can- 
celed    on     margin    by     Wm. 
Jackson. 

1838-9. 

None. 

1839. 

493 

121 

J.  L.  Woodman 

A  certain  parcel  of  Id.  in  Stan- 

Nov. 20. 

$5,000. 

ford,  on  sly.  side  of  Rush  St. 

"     21. 

contg.  15  acs.  m.  or  1. 

"     21. 

Emma,  rel.  d. 

Beg.  at  S.  W.  cor.  on  Rush  St. 

Jno.  Smith 

g.  g.  b.  s.  &  conv. 

at   Id.   of  O.   S.   Newell,  the. 

J.  P. 

Wty.  free. 

rung.    N.    E.    by    sd.    st.    as 
fence   now   stands   50   rds.   9 
Iks.   to   a   stone   standing  by 
Id.    of   J.    Smith,    the.    rung. 
N.  90°  E.  15  ids.,  etc. 
Reservg.  privilege  to  pass,  etc. 

The  next  conveyance  by  J.  L.  Woodman  would  place  his 
name  at  the  head  of  the  page  as  grantor,  and  the  procedure 
would  be  the  same  until  he  finally  parted  with  title.  All  the 
conveyances  made  by  the  grantor  during  the  period  in  which 
he  held  title  are  noted,  whether  they  include  the  premises  in 
question  or  not,  but  if  of  other  land,  reference  only  is  made  to 
them,  as  "  Id.  in  Charlestown ;  "  nor  is  any  mention  made  of 
defects,  dates,  etc. 


ANALYSIS  OF  ABSTEACT. 


Mr.  Lee,  in  the  appendix  to  his  valuable  work  on  abstracts, 
gives  the  following  form  of  an  analysis  of  an  abstract,  which 
may  be  of  service  to  American  practitioners  by  way  of  sug- 
gestion. 


APPENDIX. 


749 


ANALYSIS    OF    ALSTKACT. 


Estate  in  Foxbury, 
County  of  Devon. 


1  manor. 

1  capita]  messuage  and  cottage. 

100  acres  of  land  and  right  of  common. 


Observations. 


Date,  Parties,  Parcels. 


Uses,  Trusts,  Limitations,  etc. 


Terms,  Incum- 
brances. 


Certificates  of 
the  baptisms 
or  births  of 
the  children 
of  Mr.  and 
Mrs.  Smith, 
should  be 
pro  d  u  c  e  d, 
and  a  decla- 
ration under 
the  A  b  ol  i- 
tion  of  Oaths 
Act  made  by 
a  person  re- 
lated to  or 
a  c  q  u  ainted 
with  the  fam- 
ily, statin? 
that  there 
are  but  four 
children  of 
the  m  a  r- 
riage,  should 
be  supplied; 
and  if  Mrs. 
Smith  be 
now  dead,  a 
certificate  of 
her  burial 
should  be 
furnished. 


1773.     March   1. 
John   Jones   conveys 

Manor "i 

Souse    I  To  Abraham  Ashford  in 

300  acres    [      fee. 

Common    right ...  J 

Use  of  Ann  Downes  for 
life. 

—  as  Henry  Smith  shall 
appoint. 

—  of    Henry    Smith     in 
fee. 


1790.     May  8. 

Henry  Smith  ap- 
points same  prem- 
ises to 


Use     of     H.     Thompson 

1,000  years. 
—  of  John  Young  in  fee. 

Trust    for    A.    S.    for 

life. 
for    H.     Smith's 

children  in  fee. 


1806.     Jan.  6. 

John  Young,  Ann 
Smith,  and  four 
children,  release 
same  premises. 


to 


Richard 
fee. 


Jenkins    in 


Subject  to  1,000  years. 
and  right  of  Mrs. 
Smith  to  live  in  cot- 
tage for  life. 


1000  years  in 
H.  Thomp- 
son to  raise 
2,000  I.  for 
portions. 


750 


ABSTEACTS    OF    TITLE. 


Observations. 

Date,    Parties,     Parcels. 

Uses,  Trusts,  Limitations,  etc. 

Terms,    In- 
cumbrances. 

1815.     June   18. 

Proved  20th  July,   1816. 

Kichard   Jenkins        , 
wills  — 

to  J.  Morris  and  E.  Simp- 

Manor,    house,    cot- 

son. 

2.000Z.  paid  off. 

tage,    100  acres   and 

~ 

Term   of   1,000 

common  right. 

years.       As- 

Trust   for    testator's    wife 

signed    to    Oli- 
ver      Pearson, 

for   life,   remainder. 

in  trust  to  at- 

 for  testator's  children 

tend    for    par- 

in   fee. 

t  i  e  s     entitled 

Note. —  200    acres 

under  Jenkins' 

sold  by  Mr.  Jenkins 

will. 

during  his   life. 

LAND   MEASURES. 


In  the  preparation,  as  well  as  in  the  examination  of  abstracts 
of  title,  numerous  occasions  will  arise  for  the  computation  of 
areas,  the  measurement  of  lines  and  distances,  and  other  mat- 
ters calling  for  calculations  based  upon  the  different  methods 
now  or  formerly  in  vogue  for  land  parceling.  To  assist  the 
practitioner  by  affording  a  ready  reference  to  the  standard 
tables  of  land  measurement,  the  following  are  inserted. 

The  measures  of  extension  sanctioned  by  law  in  the  United 
States,  conform  to  the  standard  established  by^  the  English 
government,  which  is  based  upon  the  phenomenon  of  nature, 
that  the  force  of  gravity  is  constant  at  the  same  point  of 
the  earth's  surface  and  consequently,  that  the  length  of  a 
pendulum  which  oscillates  a  certain  number  of  times,  in  a  given 
period,  is  also  constant.  Had  this  unit  been  known  before  the 
adoption  and  use  of  a  system  of  measures,  it  would  have  formed 
the  natural  unit  for  division,  and  been  the  natural  base  of  the 
system  of  linear  measure.  But  the  foot  and  inch  had  long  been 
used  as  units  of  linear  measure;  and  hence,  the  length  of  the 
pendulum,  the  new  and  invariable  standard,  was  expressed  in 
terms  of  the  known  units,  and  found  to  be  equal  to  39.1393 
inches.  The  new  unit,  was  therefore  declared  invariable  —  to 
contain  39.1393  equal  parts,  each  of  which  was  called  an  inch; 


APPENDIX. 


751 


12  of  these  parts  were  declared  by  act  of  Parliament  to  be  a 
standard  foot,  and  36  of  them,  an  Imperial  yard.  The  Im- 
perial yard  and  the  standard  foot  are  marked  upon  a  brass  bar, 
at  the  temperature  of  6l;1/o°,  and  these  are  the  linear  measures 
from  which  those  in  general  use  in  this  country  are  taken. 

TABLE   OF   LINEAR   MEASURE. 

12  inches  (in.)  make  1  foot,  marked    ft. 

3  feet  "  1  yard,       "          yd. 

51  yd.,  or   16£   ft.,  "  1  rod,         "          rd. 

40  rods.  "  1  furlong,  marked    fur. 

8   furlongs,   or   320  rd.,                   "  1  statute  mile,   "      mi. 

UNIT   EQUIVALENTS. 

ft.       in. 

yd.      1  =    12 

rd.  1  =    3  =    36 

fur.      1  =        5J  =         16£  :=   198 

mi.       1  =      40  =       220  =   660  =  7920 

1  =     8  =     320  =      1760  =a  5280  =  63360 


144  square  inches 

9  square  feet 
301  square  yards 
40  square  rods 
4  roods 
640  acres 


TABLE    OF    SQUARE    MEASURE. 

(sq.    in. 


ake    1    square    foot,    marked sq.  ft. 

1    square    yard,       "        sq.  yd. 

1   square    rod  "        sq.  rd. 

1  rood,  "        R. 

1  acre,  "        A. 

1  square  mile,         "        sq.  mi. 


UNIT  EQUIVALENTS. 


sq.  rd. 

sq.  yd. 

1  = 

sq.  ft. 
9  = 

sq.  in. 
144 
1296 

R. 

1  = 

304  = 

2721  = 

39204 

A.        1  = 

40  = 

1210  = 

10890  = 

1568160 

sq.  mi. 

1  =    4  = 

160  = 

4840  = 

43560  = 

6272640 

1  = 

640  =  2560  = 

102400  = 

3097600  = 

T 

'878400  = 

4014489600 

SURVEYOR  S  MEASURE. 

In  the  primary  division  of  the  public  lands,  and  usually  in 
all  subsequent  subdivisions  of  considerable  area,  the  measure- 
ments are  made  with  what  is  called  a  Gunter's  chain,  which 
consists  of  a  metal  chain  66  feet  long  and  composed  of  100 
links.  The  chain  employed  by  the  government  in  the  execu- 
tion of  the  public  surveys  is,  however,  66.06  in  length.  The 
object  in  adding  six-hundredths  of  a  foot  to  the  66  feet  of  the 
ordinary  chain  is  to  assure  thereby  that  66  feet  will  be  set  off 


752 


ABSTRACTS    OF    TITLE. 


upon  the  earth's  surface  without  the  application  of  a  greater 
strain  than  about  twenty  pounds  by  the  chainmen,  thus  pro- 
viding for  loss  by  vertical  curvature  of  the  chain,  and  at  the 
same  time  avoiding  the  uncertain  results  attending  the  appli- 
cation of  strains  taxing  its  elasticity. 


7.92  inches 
25      links 

4      rods,  or  66  feet, 
80      chains 


TABLE   OF   LINEAR   MEASURE. 

( in. )    make  1  link    1 

"  1  rod    rd. 

"  1   chain   ch. 

"  1  mile   mi. 

UNIT   EQUIVALENTS. 


1. 

in. 

rd. 

1  = 

7.92 

ch. 

1  = 

25  = 

198 

1  = 

4  = 

100  = 

792 

80  = 

320  = 

8000  = 

63360 

In  practice  rods  are  now  seldom  used,  distances  being  taken 
in  chains  and  links.  The  foregoing  table  is  used  in  measuring 
lines  and  distances.  In  the  computation  of  areas  or  in  ascer- 
taining the  contents  of  land,  the  following  table  is  employed: 


625  square  links    (sq.   1.) 

16  poles 

10  square  chains 
640  acres 

36  square  miles    (6  mi.  square 


TABLE    OF    SQUARE    MEASURE. 

make   1  pole,    P. 

1  square  chain, sq.  ch. 

1  acre, A. 

1  square   mile,    sq.   mi. 

1  township,     Tp. 


UNIT   EQUIVALENTS. 


P. 

sq.  1. 

sq.  ch. 

=3 

1  = 

625 

1 

=: 

16  = 

1000 

10 

= 

160  = 

100000 

6400 

= 

102400  = 

64000000 

230400 

— 

3686400  = 

2304000000 

A. 

sq.  mi.  1  = 

Tp.  1  =         640  = 

1  =     36  =     23040  =J 


The  contents  of  land  are  usually  estimated  in  miles,  acres, 
and  hundredths. 

As  a  further  aid  in  arriving  a  correct  understanding  of  the 
dimensions  of  divisions  made  according  to  the  government  sur- 
vey, a  diagram  of  a  quarter  section  of  land  is  herewith  ap- 
pended, the  distances  being  marked  in  feet,  rods  and  chains. 


APPENDIX. 

40  chains 


753 


o 

$ 


1320  ft. 

80  rds. 

•a 

u                   40  ac. 

0 
00 

0 

(St 

80  acs. 

10  chs. 

10  chs. 

(A                                    -h 

■0                         * 
u      lOacs.     0 

0                      0 

20  acs. 

- 

5  chs. 

20  rds. 

5  acs. 

5  acs. 

330  ft. 

660  ft. 

20  chs. 

mile 


o 
vo 


The  government  surveys  of  all  principal  base,  meridian  and 
township  lines  are  made  with  an  instrument  operating  inde- 
pendently of  the  magnetic  needle.  The  solar  compass  or  some 
other  means  of  equal  utility  must,  of  necessity,  be  used  in 
such  cases.  But  where  the  needle  can  be  relied  on  the  ordinary 
surveyor's  compass  is  used  in  subdividing  and  meandering. 


SPANISH-FRENCH    LAND    MEASURES. 

During  the  administration  of  the  Spanish-French  govern- 
ors, in  the  province  of  Louisiana,  the  granting  power  of  the 
royal  domain  was  freely  exercised,  and  the  grants  so  made 
lie  at  the  foundation  of  many  of  the  early  titles  in  the  States 
subsequently  formed  from  that  province.13 


*a.  The  larger  part  of  the  south- 
ern   and    western    portions    of    the 


present     territory     of     the     United 
States     was     formerly     under     the 


754 


ABSTRACTS    OF    TITLE. 


The  surveys  of  these  grants  are  found  in  many  places 
wrought  in  with  our  public  surveys,  presenting,  as  it  were, 
curious  mosaic  irregularities  in  striking  contrast  with  the  sim- 
ple rectangular  system  adopted  by  the  national  government. 
They  illustrate,  in  a  forcible  manner,  the  peculiar  agrarian 
systems  of  the  governments  which  preceded  us,  in  the  diversi- 
fied, irregular  forms  of  grants,  from  urban  in-lots,  and  out- 
lots,  rural  tracts  of  inconsiderable  dimensions,  and  from  thence 
increasing  in  extent  to  7,056  arpens  or  a  league  square,  the 
"  arpen  "  of  Paris  being  the  standard  of  provincial  measure- 
ment. 

The  following  is  a  comparative  statement  adopted  by  the 
surveyor  general's  office  at  St.  Louis,  Mo.,  of  the  land  meas- 
ures of  the  United  States,  and  the  French  measures  formerly 
used  in  the  province  of  Louisiana : 


dominion  of  Spain  and  France,  and 
both  governments  made  numerous 
grants  and  concessions  both  to  com- 
panies and  individuals.  In  1803  the 
province  of  Louisiana  was  ceded  by 
France  to  the  United  States,  though 
it  was  not  until  many  years  after- 
ward that  the  boundaries  of  the 
province  were  definitely  established. 

The  Louisiana  Purchase  was 
erected  into  two  territories  by  act 
of  Congress,  March  26,  1804,  one 
called  the  Territory  of  Orleans 
and  the  other  the  District  of  Louis- 
iana. The  Territory  of  Orleans, 
on  April  30,  1812,  became  the  State 
of  Louisiana. 

The  entire  Louisiana  purchase,  be- 
ing five  times  greater  than  the  area 
of  France,  viz.,  201,900  square  miles, 
excepting  certain  grants  made  by 
French  and  Spanish  authorities,  and 
other  legal  exceptions,  became  pub- 


lic domain,  subject  to  the  survey, 
settlement  and  disposition  laws  of 
the  United  States  when  the  same 
were  extended  over  the  several  po- 
litical divisions  from  time  to  time 
by  separate  acts  of  Congress.  But 
all  claims  which  had  their  origin  in 
some  form  of  concession  from  a  for- 
eign government  before  the  acqusi- 
tion  of  the  territory  by  the  United 
States  are  recognized  and  protected 
and  after  confirmation  the  titles  to 
lands  so  acquired  have  much  of  the 
stability  of  titles  derived  from  the 
United  States. 

The  grants  by  the  Spanish  and 
French  governors  lie  mainly  within 
what  are  now  the  States  of  Louis- 
iana, Missouri  and  Iowa.  In  the 
State  of  Louisiana  alone  there  are 
upward  of  ten  thousand  confirmed 
private  land   claims. 


APPENDIX. 


755 


Linear  Measure. 

French United     States. 

Chains.  Links. 

1  perch  equals 0.  29.1CG 

2     0.  58.333 

3     0.  87.5 

4    1.  1G.GG1 

5    1.  45.833 

6     1.  75. 

7    2.  04.1GG 

8     2.  33.333 

9    2.  62.5 

10  or  one  arpent  lineal.  .  .2.  91.6G6 

2  arpents    5.  83.333 

3     8.    75 

4    11.  GG.6GG 

5     14.  58.333 

6   17.  50. 

7    20.  41.GGG 

8    23.  33.333 

9    2G.  25. 

10   29.   1G.666 

100    291.  66.666 

1000   2916.  66.666 

Side  of  a  league   square 

84    arpents    equal 2.45    chains. 

Side  of  a  mile  square. 
27  arpents   equal 80  chains. 


Superficial  Measure. 


French.  United  States. 

Arpents.  Acres. 

1  equivalent   to 0.S5  07 

2     1.70  14 

3     2.55  21 

4     3.40  28 

5     4.25  35 

6     5.10  42 

7     5.95  49 

8     6.80  56 

9     7.65  63 

10    8.50  69 

100     85.06  94 

1000     850.69  44 

10,000     8,506.94  44 

Apents.  Perches  Acres. 

1 17.551 1 

2 35.102 2 

3 52.653 3 

4 70.204 4 

5 87.755 5 

7 05.306 6 

8 22.857 7 

9 40.804 8 

10 57.959 9 

11 75,510 10 

117 55.102 100 

1.175 51.020 1000 

11.755 10.204 10,000 

Square   league. 
A    league    square    contains    7,056 
arpents  or  6,002.50  acres. 

Square  mile. 
725  arpents  32.64  perches  equal  640 
acres. 


SPANISH-MEXICAN"   LAND   MEASURES. 

By  the  treaty  of  Guadalupe  Hidalgo,  ratified  May  30,  1848, 
and  the  treaty  commonly  known  as  the  Gadsden  Purchase,  rati- 
fied June  30,  1854,  the  Mexican  Republic  ceded  to  the  United 
States  the  territory  embraced  within  the  present  limits  of  the 
States  of  California,  Xevada  and  Utah,  the  territory  of  Ari- 
zona, a  part  of  the  State  of  Colorado,  and  parts  of  the  terri- 
tories of  New  Mexico  and  Wyoming.  Scattered  over  this  dis 
trict  there  exist  many  ancient  Spanish-Mexican  titles,  munic- 
ipal and  rural,  which,  under  the  terms  of  the  treaties,  are  rec- 
ognized and  protected  by  the  government.  These  claim-  and 
grants  are  for  irregular  shaped  tracts,  illy  defined,  and  hounded 


Y56 


ABSTRACTS    OF    TITLE. 


mainly  by  natural  objects.  They  were  made  for  agriculture, 
mining,  stock-raising,  and  colonization,  and  in  all  sizes,  from  a 
village  lot  to  a  million-acre  tract.  Upon  confirmation  it  is 
necessary  to  have  these  titles  traced  out  and  fixed,  by  survey 
or  re-survey,  according  to  the  peculiarities  of  the  system  of  the 
government  from  which  they  originated,  and  incidentally  they 
must  frequently  be  referred  to  in  subsequent  conveyances  and 
subdivisions. 

The  Surveyor  General  of  California,  in  a  report  made -in 
1851,  states  that  all  grants  in  California,  made  either  by  the 
Spanish  government,  or  that  of  Mexico,  refer  to  the  "  vara  " 
of  Mexico  as  the  measure  of  length,  and  that  by  common  con- 
sent, in  California,  that  measure  is  considered  as  exactly  equiv- 
alent to  thirty-three  American  inches.2  It  would  seem  that 
another  length  is  given  to  the  "  vara  "  by  Mr.  Alexander,3  who 
states  its  length  to  be  equal  to  92.741  of  the  American  yard. 
In  practice,  however,  the  General  Land  Office  has  sanctioned 
the  recognition,  in  California,  of  the  Mexican  vara  as  being 
equivalent  to  thirty-three  American  inches. 

The  following  is  a  table  of  land  measures  adopted  by  the 
Mexican  government :  4 


Names  of  the  measures. 


Sitio  de  ganado  moyer 

Criadero   de  ganado   moyer.. 

Sitio  de  ganado  menor 

Criadero  de   ganado  menor.. 
Caballeria  de  tierra 


Media  caballeria 

Cuarto  caballeria  o  Suerte  de 
tierra     


de     sembraduro     de 


Fenega 

maiz     

Sala   para   casa 

Fundo  legal  para  pueblos. 


Figures   of   the 
measures. 


Square     

....  do 

do 

....do 

Right-a  ngled 

parallelogram. 

Square    


Right-a  ngled 
parallelogram. 


....do. 
Square 
....do. 


~  a. 

■5  *  > 

C  3.2 

v 

►J 


5,000 

2,500 

3,333^ 

1,666^ 

1,104 

552 

552 


376 

50 

1,200 


M 


5,000 
2,500 
3,333^ 
1,666^ 
552 

552 

276 


184 

50 

1,200 


25,000,000 
6,250,000 

11,111,  lll'A 

2,777,7773/» 

609,408 

304,704 

152,352 


56,784 

2,500 

1,440,000 


41,023 

10,255 

18,232 

4,558 

1 


Via 

0,004 
2,036 


2  Rep.  Genl.  Land  Office,'  1854. 

3  Dictionary      of      Weights      and 
Measures. 

4  Translated     from     the     "  Orde- 


nanzas  de  Tierras  y  Agnas "  by 
Galvan,  Ed.  1884;  and  see  Ex. 
Doc.  No.  17,  1st  Session,  31st  Con- 
gress, House. 


APPENDIX.  757 

The  Mexican  vara  is  the  unit  of  all  the  measures  of  length, 
the  pattern  and  size  of  which  are  taken  from  the  Castilian  vara 
of  the  mark  of  Burgos,  and  is  the  legal  vara  used  in  the  Mexi- 
can republic.  Fifty  Mexican  varas  make  a  measure  which  is 
called  cordel,  which  instrument  is  used  in  measuring  lands. 

The  legal  league  contains  100  cordels,  or  5,000  varas,  which 
is  found  by  multiplying  by  100  the  50  varas  contained  in  a 
cordel.  The  league  is  divided  into  two  halves  and  four  quar- 
ters, this  being  the  only  division  made  of  it.  Half  a  league 
contains  2,500  varas,  and  a  quarter  of  a  league  1,250  varas. 
Anciently,  the  Mexican  league  was  divided  into  three  miles, 
the  mile  into  a  thousand  paces  of  Solomon,  and  one  of  these 
paces  into  five-thirds  of  a  Mexican  vara ;  consequently  the 
league  had  3,000  paces  of  Solomon.  This  division  is  recog- 
nized in  legal  affairs,  but  has  been  a  very  long  time  in  disuse 
—  the  same  as  the  pace  of  Solomon,  which  in  those  days  was 
called  vara,  and  was  used  for  measuring  lands.  The  mark 
was  equivalent  to  two  varas  and  seven-eights  —  that  is,  eight 
marks  containing  twenty-three  varas  —  and  was  used  for  meas- 
uring lands. 

The  United  States  owned  no  public  land  in  Texas.  Upon 
its  admission  into  the  Union  the  title  to  the  soil  was  retained 
by  the  State  and  its  lands  were  disposed  of  under  its  own  laws. 
The  methods  of  land  parceling  followed,  in  most  respects,  those 
in  vogue  while  the  State  was  a  part  of  the  Mexican  Republic. 
A  table  of  land  measures  is  appended. 


758 


ABSTRACTS    OF    TITLE. 


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It  will  be  observed  that  the  Texan  vara  is  slightly  longer 
than  the  standard  recognized  in  California  and  adopted  by  the 
General  Land  Office. 


INDEX. 


[the  references  are  to  sections.] 

ABANDONMENT, 

considered   as  a  method  of  acquiring  title,  52. 

of  homestead,  defeats  right  of  exemption,  22. 
ABBREVIATIONS, 

may  be  used  to  advantage,  when,   101. 

may   destroy   abstract  as   evidence,   66. 
ABORIGINAL  TITLE, 

of  what  consisting,  51. 
ABSENCE, 

long  and  unexplained,  when  presumptive  evidence  of  death,  562. 
ABSTRACTS, 

definition  of,  2. 

origin  and  early  use  of,  3. 

essential  matters  to  be  shown  in,  4. 

English  method  of  compilation  of,  5. 

American  method  of  compilation  of,  6. 

distinguished  from  examinations,  7. 

what  constitutes  to  be  merchantable,  7. 

liability  for  erroneous  statements  in,  9. 

duty  of  furnishing  devolves  on  whom,  11. 

become  property  of  purchaser,  when,  11. 

compiled  from   official   sources  of  information,  58,  76,   89,  90. 

from  private  indices,  67,  74. 

formal  parts  of,  92. 

caption  of,   how   expressed,   93. 

arrangement  of,  94. 

of  instruments  and  proceedings  shown,  95,  97,  98,  100. 

letter  press  copies  of,  102. 

concluding   certificate,    103. 

of  inceptive  measures  under  U.  S.  land  laws,  128. 

of  entries  on  government  tract  books,  129. 

of  receiver's  duplicate  receipt,  134,  135. 

of  legislative  grants,  137. 

of  patents  from  United  States,  149. 

of  subdivision  by  owner,  166. 

of  vacation  of  subdivision  by  owner,  169. 

of  deeds,  parts  to  be  shown,  172.' 

759 


760  INDEX. 

ABSTRACTS  —  Continued. 

of  corporate  conveyances,  250. 

of   power   of   attorney,    263. 

of  declaration  of  trusts,  267. 

of  sheriff's  deed,  274. 

of  master's  deed,  280. 

of  trustee's  deed,  281. 

of  administrator's  deed,  286,  288. 

of  bankruptcy  proceedings,  293,  301. 

of  land  contract,  316. 

of  leases,  323. 

of  vacation  of  plat,  330. 

of   official   certificates,   334,   445. 

of  party  wall  agreement,  337. 

of  affidavit,  329. 

of  mortgage,  342,  351. 

of  wills,  413,  417. 

of  probate  proceedings,  417. 

of   court  proceedings,   501,  521. 

of  probate  sales,  494. 

of  tax  sale  certificates,  534. 

of  tax  deed,  535. 

of  tax  title,  how  compiled,  540. 

of  proof  of  death,  564. 

of  descent  in  probate,  568. 

of  adverse  titles,  573. 

methods  of  perusal  of,  591. 

printed  copies  of,  opinions  concerning,  612. 

analysis  of,  600. 

method  of  compiling  in  New  England,  Ap. 
ABSTRACT  BOOKS, 

taxation  of,  12. 

exemption  of  from  execution,  13. 
ACCRETION  AND  RELICTION, 

what  constitutes,  46. 

title  acquired  by,   nature  of,   46,  48. 

rule  for  measurement  of  lands  acquired  by,  46. 

distinguished  from  avulsion,  47. 
ACKNOWLEDGMENT, 

office  and  effect  of,  196. 

how  shown  in  abstract,  196. 

if  defective,  effect  of,  209. 

what  constitutes  defects  of,   209,  210. 

defects  of,  how  noted  in  abstract,  210. 

of  wife's  deed,  formalities  of,  245. 

of  corporate  conveyances,  256. 

by  attorney  in  fact,  how  shown,  262. 

of  sheriff's  deed  essential  to  validity,  275. 


INDEX.  761 


ACTIONS, 

respecting  title  at  law  and  in  equity,  498. 

for  divorce,  should  be  shown  when,  518. 
ADMINISTRATOR, 

powers  of,  distinguished  from  executors,  286,  287,  288. 

deeds  by,  how  made,  288. 

how  shown  in  abstract,  288. 

with  will  annexed,  powers  of,  289. 
ADMINISTRATION  OF  ESTATES, 

how  shown  in  abstract,  417,  568. 

settlement  without,  effect  of,  570. 
ADOPTION, 

defined,  33. 

effect  of  in  descent  of  estates,  33,  551. 

proof  of  in  case  of  succession,  33,  561. 
ADVERSE  CONVEYANCES, 

how  displayed  in  abstract,  573. 
ADVERSE  POSSESSION, 

character  and  effect  of,  572,  574,  576. 

from  user  only,  578. 

under  color  of  title,  576. 

naked  occupancy  without  claim  is  not,  579. 

tacking  of  successive  holdings  by,  580. 

constitutes  notice,  581. 

can  not  be  established  against  remainder-men,  583. 
or  reversioners,.  584. 
or  persons  under  disability,   586. 
or  the  State,  588. 

proofs  to  support  title  by,  590. 
ADVERSE  SEIZIN, 

will  not  prevent  valid  conveyance  of  land,  233. 
ADVERSE  TITLE, 

general   characteristics   of,   572. 

how  shown  in  abstract,  573. 

who   may   acquire,   582. 

proofs  to  support,  590. 
AFFIDAVTS, 

of  matters  in  pais,  are  required  when,  339. 

how  shown  in  abstract,  329,  339. 

general  requisites  and  sufficiency  of,  339,  340. 

of  pedigree,  form  of,  599. 

of  nonresidence,  when  required,  505. 

of    publication,    478. 
AFFINITY, 

what  is,  and  how  governed,  32. 
AFTER-ACQUIRED    ESTATES, 

when  bound  by  lien  of  judgments,  448,  452. 

effect  of  mortgages  upon,  359. 


762  index. 

AGREEMENTS, 

for   conveyance,   general   doctrines   of,    310. 
for  conveyance  by  deed,  312,  313. 
for  conveyance  by  will,   321. 
for  deed,  performance  of,  318. 
for  party  wall,  effect  of,  337. 
AGRICULTURAL  LANDS, 

what  leases  may  be  made  of,  326. 
ALIENS, 

may  take  by  descent,  550. 
may  not  make  homestead  entries,  127. 
ALIENATION, 

of  land,  what  laws  govern,  28. 
of  the  ^homestead  only  effectual  when,  22. 
ALIMONY, 

requires  notice  when  a  lien  on  land,  518. 
ALLEGIANCE, 

does  not  relate  to  title  or  imply  feudal  obligation,  18. 
AMBIGUITY, 

effect  of  and  bow  treated,  200. 
in  deeds,  186,  200,  205,  208. 
in  wills,  381,  382,  387. 
AMERICAN, 

method  of  compiling  abstract,  6. 
doctrines  with  respect  to  title,   18. 
Indian,  title  of,  how  extinguished,  51. 
ANALYSIS  OF  TITLE, 

utility  of  in  examination,  600. 
how  constructed,  601. 
how  made  in  England,  Ap. 
ANCESTOR, 

who  is  to  be  considered,  542. 
covenants  of,  bind  heir  when,  545. 
debts  of,  affect  heir  how,  545. 
death  of,  must  be  proved,  562. 

title  of,  descends  to  heir  by  operation  of  law,  543. 
ANCESTRAL  ESTATES, 

by  what  rule  distributed,   552. 
ANCIENT  DEEDS, 
what  are,   198. 

require  no  proof  of  execution,   198. 
APPEARANCE, 

effect  of  in  legal  proceedings,  506. 
ARRANGEMENT, 

of  abstract,  suggestions  for,  94. 
ASSESSMENTS, 

special,  how  shown  in  abstract,  541. 


INDEX.  763 


ASSESSORS'  PLATS. 

for  what   purpose  made  and  how  shown,  528. 
ASSIGNEE, 

of  military   warrants  and  land  scrip,  120. 

of  land   contract,   rights  of,  317. 

of  lease,  acquires  what  interest,  327. 

of   mortgage,   rights   of,   300. 

in   bankruptcy,  deed  of,   307. 
ASSIGNMENT, 

as  a  mode  of  conveyance,  228. 

of  military  warrant,  when  permitted,   120. 

for  benefit  of  creditors,  293. 

voluntary,   how   made,   294. 

construction  and  effect  of,  295,  298. 

by  register  in  bankruptcy,  307. 

of  agreements  for  conveyance,  317. 

of  lease,  how  made,  327. 

of  mortgage,  effect  of,  365,  3G6,  307. 

of  mechanic's  lien,  effect  of,  437. 

of  certificate  of  sale  under  execution,  489. 
ATTACHMENT, 

general  doctrine  of,  444. 

formal  requisites  of,  445. 

how  shown   in  abstract,  445. 
ATTESTATION, 

by  subscribing  witnesses  to  deeds,  195. 
ATTORNEY, 

power  of,  how  shown,  263. 

opinion  of  title  by,  613,  614. 

liability  of  for  erroneous  opinion,  619. 
ATTORNEY  IN  FACT, 

conveyance  by,  how  made,   263. 

how  shown  in  abstract,  263. 

purport  and  extent  of  powers  of,  262,  263. 

revocation  of  authority  of,  264. 

substitution  of,  264. 
AVULSION, 

what  is,  and  by  what  laws  governed,  47. 

BANKRUPTCY, 

jurisdiction  and  practice  in,  301,  302. 
nature  and  effect  of,  304. 
proceedings  in,  how  shown  in  abstract,  306. 
register's  assignment  in,  307. 
deed  of  assignee  in,  308. 
effect  of  discharge   in,  309. 
BIRTH, 

of  heir,  affects  tenant  by  curtesy,  23. 

proof  of,  necessary  to  establish  claim  of  heir,  565. 


7  64  INDEX. 

BONDS, 

for  conveyance,  how  shown,  320. 

of  officials  are  liens  on  land,  when,  429. 
BOOKS, 

abstract,  how  laid  out  and  kept,  78. 

exemption  of,  from  forced  sale,  13. 
BOUNDARIES, 

of  lands  adjoining  navigable  waters,  48,  165. 

by  lines  of  the  public  surveys,  163,  164,  186. 

CANONS  OF  DESCENT, 

of  what  consisting,  30,  547. 
CAPTION, 

of  abstracts  and  examinations,  93. 

of  opinions  of  title,  614,  616. 
CAVEAT  EMPTOR, 

doctrine  of  applies  to  purchases  at  execution  sale,  472. 
and  from  administrator,  288. 
CERTIFICATES, 

official,  by  custodian  of  records,  72,  334. 

appended  to  abstract  by  examiner,  103. 

how  shown  in  abstract,  334. 

of  proof  of  will,  413. 

of  levy  of  attachment,  445. 

of  publisher,  notice  of  sale,  478. 

of  sale  by  officer,  how  shown,  488. 

of  sale,  assignment  of,  489. 

of  publication  of  notice  of  sale,  478. 

of  sale  for  non-payment  of  taxes,  534. 

of  title,  what  are  and  utility  of,  615. 

deaths,  births  and  marriages,  563. 
CHAIN  OF  TITLE, 

preliminary  sketch  of,  91. 

analytical,  on  examination  of  abstract,  601. 

as  arranged  in  abstract,  94. 
CHANCERY  COURTS, 

jurisdiction  of,  496. 

proceedings  of,  how  shown,  498. 

notice  afforded  by  records  of,  500. 
CHANCERY  PROCEEDINGS, 

method  of  indexing,  85. 

authority  and  jurisdiction  of  courts  in,  496. 

requiring  notice  in  abstract,  498. 

jurisdiction  the  great  essential  in,  499. 

notice  afforded  by  record  of,   500. 

how  instituted  and  conducted,  501,  506. 

How  shown  in  abstract,  504,  509. 


index.  76; 


CHARTERS, 

of  corporations,  effect  of  on  titles,  257. 
CHILDREN, 

is  word  of  purchase  not  limitation,  385,  389. 

construed  as  synonymous  with  issue,  387. 

limitation  of  estate  to,  effect  of,  386. 

does  not  include  grandchildren,  387. 
CHURCH   RECORDS, 

may  be  resorted  to  for  evidence,  73. 
CLASS, 

devise  to,  effect  of,  423. 
CLASSIFICATION  OF  TITLE, 

Blackstone's   distinctions,   16. 

by  courts  of  equity,  16. 
CLOUDS  UPON  TITLE, 

what  are,  and  effect  of,  607. 
COLOR  OF  TITLE, 

what  constitutes,  26,  575. 

entry  under  and  adverse  possession,  576. 
COMPILATION, 

of  abstract,  English  method,  5. 

American  method,  6. 

from  what  sources  of  information,  58,  67,  76,  90. 

from  official  indices,  what  should  be  examined,  67. 

making  the  chain,  91. 

from  private  indices,   74. 

insertion  of  notes  in,  98. 

abbreviation,  when  permissible,  101. 

of  initial  statements,  93. 

of  abstract  books,   78. 
CONDEMNATION, 

proceedings  for,  how  shown,  520. 
CONDITIONS, 

annexed   to  grants,   effect  of,   190. 

will  be   invalid  when,   190,   232. 

how  shown  in  abstract,  232. 

in   mortgages,   effect   of,    355. 

devise  upon,  effect  of,  394,  395. 
CONFIRMATION, 

nature  and  characteristics  of,  50. 

as  basis  of  title  in  foreign  grants,  50. 

how  shown  in  abstract,   132. 

as  a  mode  of  substantive  conveyance,  226. 

of  judicial  sales,  effect  of,  486,  487. 
CONFLICT   OF   LAWS, 

in  alienation  and  descent,  28. 

in  matters  of  assignment  and  insolvency,  299. 


766  INDEX. 

CONFISCATION, 

nature  and  characteristics  of,  56. 
CONGRESSIONAL  GRANTS, 
nature  and  effect  of,   138. 
construction   of,    139. 
how  shown  in  abstract,  140. 
CONSANGUINITY, 
defined,   31. 

computation   of   degrees   of,   31. 
table  of  degrees  of,  according  to  the  civil  law,  31. 
distinguished  from  affinity,   32. 
as  affected  by  statutes  of  adoption,  33. 
CONSIDERATION, 

as  expressed  in  deeds,  effect  of,  179,  180. 
CONSTRUCTION, 

of  patents  from  U.   S.,   155.    > 
of  deeds  and  other  instruments,   186,  214. 
CONSTRUCTIVE   NOTICE, 
general  doctrines  of,   62. 
afforded  by  public  records,  64,  65. 
by   records,    rigidly    construed,   65. 
distinguished   from   actual   notice,   63. 
not  impaired  by  destruction  of  records,  66. 
judgments    and    decrees    rendered   upon,   462. 
CONSTRUCTIVE  POSSESSION, 
distinguished  from  actual,  577. 
of  lands  held  adversely,  577. 
CONTINGENT   REVERSION, 

under  wills,  how  created,  397. 
CONTINGENT   REMAINDERS, 

under  wills,  how  construed,  389,  394,  396. 
CONTRACTS   FOR  CONVEYANCE, 
general  remarks  concerning,  310. 
relation  of  parties  under,  311. 
effect  and  operation  of,  312. 
nature  and  formal  requisites  of,  313. 
how   affected   by   recording  acts,   314. 
construction   of,   315. 
how  shown  in  abstract,  316. 

performance  of  sufficiency  of   deed  and  title,  318. 
effect  of  assignment  of.  317. 
effect  on  title  when  forfeited,  319. 
in  form  of  bond,  effect  of,  .320. 
by  will,  validity  of,  321. 
CONTINUATIONS. 

of  abstracts,  caption  of.  93. 
CONVEYANCES, 

by  heirs,  what  facts  jurisdictional,  36. 


INDEX.  767 


CONVEYANC  ES  —  Continued. 

should  be  rejected,  when,   36. 

by   pre-eniptioners  before  entry,    112,    113. 

of  homestead  claim  before  maturity.   117. 

by  way  of  legislative  grant,  effect  of,   124,  125,  137,  149. 

from  the  U.   S.  government,   125. 

from  the  state,  138,  157. 

between  individuals,  212. 

derived  from  the  common  law,  224. 

of  future  interests  and  estates,  229. 

of  special  interests  and  qualified  estates,  230. 

restrictive  or  conditional  in  character,  232. 

of  lands  held  in  adverse  possession  of  another,  233. 

in  fraud  of  creditors,  234. 

subject   to   incumbrance,   235. 

intended   for  marriage  settlement,  240. 

to  husband  and  wife,  effect,  241. 

between  husband  and  wife,  242. 

by  married  women,  243,  244. 

of  lands  held  in   common,  247. 

to  effect  partition,  248. 

of  partnership  lands,   249. 

by  or  to  corporations,  250,  255. 

post  obit,  effect  of,  261. 

by   delegated   authority,   262. 

in  trust,  for  what  purposes  permitted,  265. 

made  in  official  character,  270. 

by  trustees  of  legal  estate,  281,  283,  284. 

by  mortgagees,  285. 

by  executors  and  administrators,  286. 

by  guardians  and  conservators,  290. 

by  way  of  voluntary  assignment,  293. 

through  bankruptcy  proceedings,  306,  308. 

agreements  for,  nature  and  requisites,  313. 

by  will,  agreements  for,  321. 

intended  as  security  only,  effect  of,  348. 

by  way  of  devise,   376. 

how  affected  by  liens  and  incumbrances,  418. 
by  lis  pendens  and  attachment,  439. 
by  judgments  and  decrees,  449. 

resulting  from  judicial  and  execution  sales,  274,  280. 

resulting  from  tax  sales,  535,  539. 

of  adverse  interests  and  estates,  573,  580. 
COPARCENERS, 

who  are,  and  by  what  rules  governed,  554. 
COPIES, 

of  abstract  should  be  preserved  by  examiner,  102. 

printed,  of  abstracts,  value  of,  612. 


768  INDEX. 

CORPORATIONS, 

right  of,  to  acquire,  hold  and  transmit,  250,  252. 

as  affected  by  statutes  of  mortmain,  251. 

conveyances  by  and  to,  254,  255. 

execution  of  deeds  by,  256. 

municipal,  may  hold  land  when,  253. 
COVENANTS, 

classified  and  distinguished,   191. 

operation  and  effect  of,  191. 

defects  of  form  or  substance  in,  208. 

operate  by  estoppel,  when,  42. 

not  implied  in  official  deeds,  273. 

in  leases,  effect  of,  324. 

implied  in  leases,  what  are,  325. 

in  mortgages,  effect  of,  353,  354,  355. 

effect  of,  in  party  wall  agreement,  337. 

of  ancestor,  affect  heir  how,  557. 
CREDITORS. 

assignment  for  benefit  of,  293. 

liens  of,  on  decedent's  real  estate,  557,  558. 
CURTESY, 

tenancy  by  in  the  United  States,  23. 

DATES, 

of  deed  not  essential,  177. 

of  registration  should  be  shown,  178. 

disparities  of,  how  shown,  203. 
DEATH, 

proof  of  essential  to  rights  of  heir,  35. 

how  shown  in  case  of  succession,  562. 

how  shown  in  abstract,  562,  563,  568. 

as  shown  by  proceedings  in  pi-obate,  569. 

affects  sale  on  execution  how,  479. 
DEBTS, 

are  a  charge  on  land,  when,  557. 

of  ancestor,  liability  of  heir  for  payment  of,  557. 

of  testator,  liability  of  devisee  for,  405. 

devises  for  payment  of,  when  regarded  as  money,  406. 
DECLARATION  OF  TRUST, 

how  made  and  shown,  267. 
DECREES, 

defined  and  distinguished,  446,  460. 

operation  and  effect  of,  461. 

rendered  on  constructive  notice,  462. 

lien  of,  463. 

formal   requisites   of,   464. 

how  shown  in  abstract,  465. 

errors  and  defects  in,  how  treated,  466. 


INDEX.  769 


DECREES  —  Continued. 

rendered  in  foreign  jurisdiction,  470. 

in  probate,  effect  of,  469. 
DEDICATION, 

consists  of  what,  49. 

at  common  law  and  under  statute,  49. 

by  plat,  effect  of,  170. 

by  deed,  form  and  effect  of,  236. 
DEED, 

title  by,  what  is,  38. 
DEEDS, 

operative  parts  of  to  be  considered,  172. 

names  of  parties  in,  173,  174,  175. 

necessity  and  effect  of  consideration  for,  179,  180. 

special  words  of  limitation,  purchase,  etc.,  181,  182. 

description  of  property  in,  183,   186. 

special  recitals  of,  187. 

exceptions,  conditions,  etc.,  189,  190,  191. 

facts  of  execution  considered,   192. 

delivery  of,  necessity  for,  197. 

operation  and  effect  of  ancient  deeds,  198. 

stamps,  necessity  for  and  how  shown,  199. 

erroneous  recitals  in,  how  shown,  200,  203. 

misdescription  of  property,  205,  207. 

defective  execution  of,   209. 

classified  and  distinguished,  213. 

how  shown  in  abstract,  216,  217. 

statutory  forms  of,  223. 

common  law  forms  of,   224. 

of  qualified  estates,  230,  231. 

by  way  of  conveyance  in  future,  229. 

restrictive  and  conditional  clauses  in,   190. 

dedication  by,  236. 

particular  classes  of,  by  individuals,  240. 

to  effect  a  partition,   248. 

of  corporations,  250. 

by  heirs  at  law,  effect  of,  36,  260. 

by  attorney  in  fact,  262. 

by  sheriff,  on  execution,  274. 

by  master,  commissioners,  or  referees,  280. 

by  trustees,  281. 

by  mortgagees,  285. 

by  executors  and  administrators,  286. 

by  guardians  and  conservators,  290. 

of  voluntary  assignment,  294. 

by  assignee  in  bankruptcy,  307,  308. 

agreement  for,  313. 

of  vacation  of  plat,  169. 
49 


770  INDEX. 

DEEDS  —  Continued. 

absolute,  will  be  treated  as  mortgage,  348. 

of  trust  in  nature  of  mortgage,  363. 

issued  on  tax  sales,  535,  539. 

shown  adversely,  573. 
DEED  POLL, 

defined  and  distinguished,  213. 
DEGREES, 

of  consanguinity,  how  computed,  31. 
DELIVERY, 

of  U.  S.  patents,  not  essential,  151. 

of  deeds,  is  essential  to  transfer  title,  197. 

presumption  of  from  recording,  197. 
DESCENT, 

title  by,  defined,  29,  542. 

by  what  laws  governed,  28,  29,  30,  543,  547. 

rules  in  the  United  States,  30,  547. 

operation  and  incidents  of  title  by,  543. 

who  may  take  by,  546,  550. 

what  property  passes  by,  555. 

how  affected  by  ancestral  covenants,  556. 

how  affected  by  creditors'  liens,  558. 

may  be  defeated  by  equitable  conversion,  559. 

validity  of,  how  established,  560. 

how  shown  in  abstract,  564,  568. 
DESCRIPTION  OF  PROPERTY, 

sufficiency  and  construction  of,  183. 

uncertainty  and  error  in,  how  shown,  205. 
DESERT  LAND  ACT, 

entries  of  public  land  under,  118. 
DESTRUCTION  OF  RECORD, 

does  not  impair  constructive  notice  of  same,  66. 
DEVISE, 

title  by,  what  is,  39,  376,  377. 

operation  and  effect  of,  378. 

rules  of  construction  of,  381. 

affected  how,  by  words  of  purchase  and  limitation,  385. 

rule  in  Shelly's  case  applied  to,  386. 

of  real  estate,  what  words  are  necessary,  388. 

to  a  class,  effect  of,  390. 

with  power  of  disposition,  construction  of,  392. 

of  indeterminate  character,  how  construed,  393. 

on  condition  precedent,  effect  of,  394. 

with  remainder  over,  396. 

to  married  woman,  398. 

to  executors  in  trust,  399. 

to  beneficiary  by  description  only,  400. 

with  precatory  words  annexed,  effect  of,  401. 


index.  771 


DEVISE  —  Continued. 

with  suspension  of  power  of  alienation,  402. 

« ill  lapse  when,  403. 

for  the  payment  of  debts,  404. 

subject  to  payment  of  debts,  effect  of,  405. 

will   work  equitable  conversion,   when,   40G. 

of  the  residuum,  effect  of,  407. 

of  the  income  of  realty,  effect  of,  391. 
DEVISEE, 

takes  by  descent,   when,   383. 

nature  of  the  title  acquired  by,  376. 
DISABILITY, 

persons  under,  exceptions  in  favor  of,  586. 
DISCHARGE, 

in  bankruptcy,  how  shown,  309. 

of  mortgage,  368,  371. 

of  lien  of  judgments,  459. 
DISPOSAL  OF  PUBLIC  LANDS, 

effected  by  what  system,  106. 

by  public  sale,  107. 

by  private  entry,  108. 
DIVISIONS, 

of  the  public  domain,    161. 
DIVORCE, 

effect  of  on  titles,  518. 

proceedings  in,  how  shown  in  abstract,  518. 
DOCUMENT   NUMBER, 

index  of,  how  kept,  79. 
DONATION  ENTRIES, 

of  public  lands,  how  effected,  115. 
DOWER, 

definition  of,  23,  423. 

nature  of  estate  conferred  by,  23. 

how  conveyed  or  barred,  23,  246. 

right  of,  not  affected  by  execution  sale,  when,  481. 

proceedings  for,  how  shown  in  abstract,  517. 
DUPLICATES, 

how  shown  in  abstract,  238. 

EASEMENTS  AND  SERVITUDES, 

defined,   distinguished,  25,   336. 

how  acquired  or  lost,  25. 

distinguished  from  license,  25. 

when  inquiries  should  be  made  with  regard  to,  610. 
EJECTMENT, 

effect  of  judgment  in,  511. 
EMINENT  DOMAIN, 

nature  of  the  right,  53. 


772  INDEX. 

EMINENT  DOMAIN—  Continued. 

character  of  title  acquired  by,  53,  54. 

actions  in  exercise  of,  519. 

matters  to  be  noticed  in  abstract  of,  520. 
ENGLISH  METHODS, 

of  compiling  abstract,  5. 
ENTAIL, 

to  what  extent  permitted,  182,  386. 
ENTRY, 

of  public  lands,  108. 

nature  of  title  conferred  by,  109. 

what  land  subject  to,  110. 

how  shown  in  abstract,  129. 
EQUITY, 

of  redemption,  what  is,  342,  343. 

will  treat  deed  as  mortgage,  when,  348. 
EQUITABLE  CONVERSION, 

what  is,  and  how  effected,  406. 

may  defeat  succession  of  heir  when,  599. 
EQUITABLE  MORTGAGES, 

general  doctrines  respecting,  348. 

deeds  in  form  may  be  decreed,  348. 
ERROR, 

liability  of  examiner  for,  9. 

in  deeds  and  other  instruments,  200. 

of  description,  in  deeds,  205. 
and  mortgages,  352. 

in  opinion,  liability  of  counsel   for,  619. 
ESCHEAT, 

origin  and  former  nature  of,  55. 

nature  of  at  present  time,  55,  571. 
ESTATE, 

distinguished  from  title,  14. 

as  affected  by  uses  and  trusts,  20. 

by  exercise  of  powers,  21. 

of  homestead,  of  what  consisting,  22. 

by  entirety,  how  created,  241. 

in  common,  how  held,  247. 
ESTATES, 

under  allodial  titles,  19. 

under  existing  laws,  19. 

of  dower  and  curtesy,  23. 

for  years,  nature  of,  24. 
ESSENTIALS, 

of  abstract  of  title,  4. 
ESTOPPEL, 

defined  and  distinguished,  41. 

elements  of,  41. 


INDEX.  773 


ESTOPPEL  —  Continued. 

classification   of,  technical,  42. 

equitable,  43. 

does  not  affect  sovereign  power,  43. 

applies  to  mortgages,  346. 

of  a  judgment,  extends  to  what,  42. 

by  deed  is  raised  in  what  manner,  43. 
EXAMINER, 

necessary  qualifications  of,  8. 

is  liable  for  erroneous  certificate,  when,  9. 

conditions  necessary  to  fix  liability  of,  9. 

duty  of,  in  expositions  of  title,  9. 
EXAMINER'S  NOTES, 

should  be  inserted  when,  98,  218. 
EXAMINATION, 

of  title,  distinguished  from  abstract,  7. 

liability  for  error  in,  9. 

of  official  indices  and  records,  67. 

of  abstract  by  counsel,  593,  594. 
EXCEPTIONS, 

distinguished  from  reservations,  189. 

how  created  and  shown,  189. 
EXECUTION, 

of  judgments,  475,  476. 

sales  under,  effect  of,  471. 

must  conform  to  judgment,  475. 

levy  of,  how  made  and  returned,  476. 

of  deeds,  formalities  required,  192,  209. 

of  deed  of  corporation,  256. 

of  deed  of  attorney  in  fact,  263. 

sale  of  abstract  books  under,  13. 
EXECUTION  SALES, 

defined  and  distinguished,  471. 

validity  and  effect  of,  472. 

purchaser  at,  takes  subject  to  all  equities,  472. 

title  under,  extends  to  what,  473. 

title  vests  under,  when,  474. 

dependent  on  validity  of  writ,  475. 

as  effected  by  levy,  476. 

notice  of,  how  given,  477. 

affected  how  by  death,  479. 

exemptions  from,  480. 
EXECUTION  OF  DEEDS, 

consists  of  what,  192,  210. 

various  parts  of,  how  shown,  193,  210. 
EXECUTORS  AND  ADMINISTRATORS, 

nature  of  power  held  by,  286. 

deeds  and  conveyances  by,  286,  287. 


774  INDEX. 

EXECUTORS  AND  ADMINISTRATORS  —  Continued. 

with  will  annexed,  powers  of,  289. 

devises  to,  in  trust,  399. 
EXEMPTION, 

from  the  lien  of  judgments,  458". 

inquiry  concerning,  should  be  made  when,  480. 

of  abstract  books  from  forced  sale,  13. 
EXPRESS  TRUSTS, 

for  what  purposes  created,  20. 
EXTENT  OF  SEARCH, 

in  compiling  abstract  of  title,  90. 

FEE  SIMPLE, 

estate,  signifies  what,   19. 
FIELD  NOTES, 

of  government  surveys,  importance  of,  77.    ■ 
FLAWS, 

in  title,  of  what  consisting  and  how  remedied,  606. 
FORECLOSURE, 

of  mortgage,  general  observations,  372,  516. 

of  mortgage,  by  advertisement,  373. 

proof  of  title  under,  373. 

of  mechanics'  liens,  438. 

actions  of,  how  shown  in  abstract,  516. 
FOREIGN  PROBATE, 

effect  of,  and  how  shown,  416. 
FORFEITURE, 

defined  and  distinguished,  57. 

for  non-payment  of  taxes,  how  shown,  529. 
FRAMING  OPINIONS, 

general  remarks  upon,  604. 
FRAUDULENT  CONVEYANCES, 

considered   with  respect  to  abstracts  thereof,  234. 

GENERAL  LAND  OFFICE, 

records  of,  when  recourse  must  be  had  to,  152. 
GOVERNMENT  SURVEYS, 

character  and  effect  of,  77. 
GRADUATION  ENTRIES, 

of  public  lands,  how  effected,  114. 
GRANTS, 

under  swamp  land  act,  122. 

in  aid  of  education,  123. 

in  aid  of  internal  improvements,  124. 

in  aid  of  railroads,  125. 
GUARDLAtfS, 

deeds  and  conveyances  by,  290. 


INDEX.  775 


HABENDUM, 

of  deeds,  office  of,  188. 
HALF  BLOOD, 

children  of,  participate  equally,  552. 
HEIRS, 

who  are,  30,  547. 

conveyances  by,  effect  of,  36,  260,  570. 
post  obit  conveyances  by,  effect  of,  261. 
entitled  to  representation,  when,  548. 
liability  of  for  ancestral  debts,  557. 
must  establish  death  of  ancestor,  562. 
must  prove  birth  and  legitimacy,  565. 
HEIRSHIP, 
defined,  29. 

rules  governing,  30,  547. 
proof  of,  how  made,  34,  560. 
effect  of  conveyances  by  virtue  of,  36,  260,  570. 
rights  and  privileges  of,  545. 
dependent  on  fact  of  death,  562. 
accrues  only  to  lawful  issue,  565. 
HIGHWAYS, 

on  the  public  lands,  126. 
HOMESTEAD, 

right  of  in  United  States,  22. 
consists  of  what,  25. 
entries,  under  U.  S.  land  laws,  116. 
mortgages  of,  how  made,  358. 
exempt  from  lien  of  judgment,  458,  480. 
when  inquiries  as  to,  should  be  made,  611. 
HOMESTEAD  ENTRIES, 

of  public  lands,  nature  of,  116. 
rights  acquired  by,  117. 
HUSBAND  AND  WIFE, 

conveyances  to,  effect  of,  241. 
conveyances  between,  242. 
not  heirs  to  each  other,  553. 

IMPLIED  COVENANTS, 

in  leases,  what  are,  325. 

from  words  of  grant,  what  are,  181. 
INCEPTION  OF  TITLE, 

presentation  of  different  measures  of,  129. 
INCOME  OF  REALTY, 

gift  of,  passes  land,  391. 
INCUMBRANCE, 

conveyances  subject  to,  effect  of,  235. 

when  grantee  becomes  liable  for,  235. 


776  INDEX. 

INDENTURE, 

defined  and  distinguished,  213. 
INDETERMINATE  DEVISE, 

construction  of,  393. 
INDEXES, 

official,  in  public  offices,  67. 

grantor  and  grantee,  68. 

plaintiff  and  defendant,  70. 

to  public  records,  not  a  part  of  same,  68. 

importance  of  in  abstract  making,  67,  74. 

inutility  of  "  patent "  forms  of,  75. 

of  government  tract  book,  76. 

of  field  notes  of  government  surveys,  77. 

books  of  original  entry,  78. 

of  document  numbers,  79. 

suggestions  for  form  of  entries  in,  80. 

of  tracts  and  parcels,  81. 

of  irregular  instruments,  82. 

of  tax  sales  and  redemptions,  83. 

of  judgments,  84,  85. 

of  names,  86. 

method  of  laying  out  and  keeping,  88. 

scale  for  paging,  88. 
iNFANTS, 

effect  of  judgments  against,  457. 
INHERITANCE, 

words  of,  in  deeds,  182. 

as  affected  by  rule  in  Shelly's  case,  182. 

not  dependent  on  seizin,  544. 

right  of  in  case  of  adoption,  551,  561. 
INJUNCTIONS, 

should  be  shown  in  abstract,  when,  510. 
INQUIRIES  IN  PAIS, 

to  demonstrate  adverse  possession,  578,  581,  586. 

to  show  fact  of  death,  562,  599. 

to  prove  birth  and  marriage,  565,  599. 
INSOLVENCY, 

voluntary  assignments  and  bankruptcy,  293. 
INSPECTION. 

of  records,  right  of,  60. 
INSTRUMENTS, 

of  conveyance,  synopsis  of,  95. 

fullness  of  narration  of,  96. 

shown  for  reference,  97. 

references  to  original,  100. 

irregular,  how  shown,  99. 

nature  of,  how  indicated  in  abstract,  176. 


INDEX. 

INTERNAL  IMPROVEMENT  GRANTS, 

for  what  purposes  made,  124,  125. 

nature  of  title  conferred  by,  124. 

how  shown  in  abstract,  124. 
INTESTATE, 

property  signifies  what,  542  note. 
INTRODUCTORY, 

remarks  concerning  abstracts,  1. 

statements  in  abstract,  93,  129. 
IRREGULAR  INDEX, 

how  compiled  and  used,  82. 
IRREGULAR  INSTRUMENTS, 

method  of  compiling  index  for,  82. 

how  shown  in  abstract,  99,  329. 
ISLANDS, 

ownership  of  and  rules  for  division,  40. 

JOINT  TENANCY, 

deeds  of  land  held  by,  247. 
JUDICIAL  SALES, 

defined  and  distinguished,  471. 

differ  from  execution,  how,  471. 

validity  and  effect  of,  472. 

title  under,  how  construed,  473,  474. 

rights  of  purchaser  at,  484. 

purchaser  may  be  compelled  to  take  title  under,  when,  485. 

must  be  confirmed  to  pass  title,  486,  487. 

certificate  of,  how  shown  in  abstract,  488. 

proof  of  title  under,  how  made,  490. 
JUDGMENTS, 

defined  and  distinguished,  446. 

operation  and  effect  of,  447. 

extent  and  duration  of  lien  of,  450. 

priority  of,  451. 

lien  of  attaches  to  after-acquired  property,  452. 

formal  requisites  of,  454. 

entry  and  docketing  of,  453. 

how  shown  in  abstract,  454. 

satisfaction  and  discharge  of,  459. 

against  deceased  person,  effect  of,  456. 

against  infants,  457. 

exemptions  from  lien  of,  458. 

errors  and  defects  in,  how  treated,  466. 

extra-territorial  effect  of,  449. 

sales  under,  471. 
JUDGMENT  INDEX, 

of  examiner,  how  compiled  and  used,  84. 


778  INDEX. 

LAND  CLAIMS, 

private,  nature  of  title  under,  126a. 
LAND  CONTRACTS, 

relation  of  parties  under,  311. 

operation  and  effect  of,  312. 

nature  and  requisites  of,  313. 

as  affected  by  recording  acts,  314. 

construction  of,  315. 

how  shown  in  abstract,  316. 

assignment  of,  operation  and  effect,  317. 

performance  of,  sufficiency  of  deed  and  title  under,  318. 

when  forfeited,  effect  of,  319. 

in  form  of  bond,  effect  of,  320. 
LAND  GRANTS  TO  RAILROADS, 

how  made,  and  title  conferred  by,  125. 
LAND  MEASURES, 

tables  of,  in  common  use,  Ap. 

used  in  Spanish-French  grants,  Ap. 

used  in  Spanish-Mexican  grants,  Ap. 

used  in  Texas,  Ap. 
LAND  SCRIP, 

for  what  issued  and  to  whom,  121. 

location  of  public  land  under,  121. 
LAYING  OUT' BOOKS, 

suggestions  in  regard  to,  78. 
LEASES, 

nature  and  requisites  of,  322. 

formal  requisites  of,  323. 

how  shown  in  abstract,  323. 

effect  of  covenants  and  conditions  in,  324. 

covenants  in  are  implied  when,  325. 

of  agricultural  lands,  effect  of,  326. 

assignments  of,  327. 

are  a  charge  upon  the  fee,  431. 
LEGAL  MEMORY, 

periods  of,  how  fixed,  45. 
LEGISLATIVE  GRANTS, 

nature  and  effect  of,  137,  138. 

rules  of  construction  relating  to,   139. 

formal  requisites  of,  140. 

how  shown  in  abstract,  140. 
LETTERS, 

or  private  correspondence  may  be  shown  in  abstract,  when,  338. 
LETTER  PRESS  COPIES, 

of  abstract,  should  be  taken  by  examiner,  102. 
LIABILITY, 

of  examiner  for  erroneous  search,  9. 


INDEX.  779 


LIABILITY  —  Continued. 

of  examiner,  character  of,  10. 

of  attorney  for  erroneous  opinion,  619. 
LICENSE, 

distinguished  from  easement,  25. 
LIENS, 

general  doctrines  of,  418. 

how  created  and  exhibited,  419,  421. 

created  by  official  bonds,  430. 

by  reservations  in  deeds,  432. 

in  aid  of  mechanics,  433. 

attach  to  what  estate  or  interest,  435. 

limitation  of,  436. 

of  taxes,  attach  when,  428. 

of  creditors  may  defeat  succession  of  heir,  558. 

of  judgments  and  decrees,  449,  450. 
LIMITATION  AND  PRESCRIPTION, 

doctrine  of,  45. 

title  founded  upon,  45. 
LIMITATION, 

and  purchase,  words  of,  182,  385. 

of  estate,  how  created,  216,  385. 

of  liens  of  mechanics  and  others,  436. 
LIMITATION,  WORDS  OF, 

employed  in  deeds,  182,  216. 

used  in  leases  or  creation  of  lesser  estates,  323. 

how  affected  by  the  rule  in  Shelly's  case,  182. 
LIS  PENDENS, 

general  doctrine  of,  439. 

filing  of  notice  of,  74,  442. 

how  shown  in  abstract,  442. 

MAP, 

of  township  subdivision,  161. 

of  sectional  subdivision,  163. 
MARGINAL  DISCHARGE, 

of  mortgage,  effect  of,  371. 
MARGINAL  NOTES, 

how  employed  in  examination  of  abstract,  596. 
MARKETABLE  TITLE, 

elements  which  constitute  a,  604,  605. 
MARRIAGE   SETTLEMENTS, 

legal  effect  of,  240. 
MARRIED  WOMAN, 

conveyances  by,  how  made,  243. 

effect  of  conveyances  by,  244. 

formal  requisites  of  conveyances  by,  245. 

release  of  dower  by,  246. 


780  INDEX. 

MARRIED  WOMAN  —  Continued. 

abstract  of  release  of  dower  by,  246. 
devise  to,  construction  of,  398. 
may  acquire  title  by  adverse  possession,  587. 
MASTERS, 

certificate  of  sale,  how  shown,  488. 
reports,  how  shown,  507. 
MASTERS'  DEEDS, 

operation  and  effect  of,  280. 
how  shown  in  abstract,  280. 
MEANDER  LINES, 

how  run  and  for  what  purpose,  165. 
MECHANICS'  LIENS, 

nature  and  effect  of,  433. 
rules  with  respect  to  priority  of,  434. 
attach  to  what  estates,  435. 
limitation  of,  436. 
foreclosure  of,  438. 

should  be  detected  by  inquiries  in  pais,  when,  609. 
MERGER, 

general  doctrine  of,  347. 
MILITARY  WARRANTS, 

location  of  public  lands  under,  120. 
MISDESCRIPTION, 

of  parties  to  deeds,  201,  202. 
of  lands  in  deeds,  205. 
in  official  deeds,  277. 
MORTGAGES, 

defined  and  distinguished,  342,  343. 
rights  of  parties  under,  344,  345. 
as  affected  by  estoppel,  346. 
doctrine  of  merger  applied  to,  347. 
deeds  absolute  may  be  decreed  to  be,  when,  348. 
how  shown  in  abstract,  350. 
statutory  forms  of,  351. 
erroneous  description  in,  352. 
effect  of  covenants  in,  353,  355. 
effect  of  informality  in,  356. 
when  for  purchase  money,  effect  of,  357. 
of  the  homestead,  how  made,  358. 
of  after-acquired  property,  359. 
how  affected  by  recording  acts,  360. 
re-records  of,  how  treated,  362. 
trust  deeds  in  nature  of,  363. 
power  of  sale  in,  how  shown,  364. 
sale  under,  by  virtue  of  power,  364. 
assignment  of,  how  made,  366. 
operation  and  effect  of,  366. 


INDEX.  781 

MORTGAGES  —  Continued. 

formal  requisites  of  assignment  of,  367. 
releases  of,  how  made,  368. 
by  trustee,  370. 
on  margin  of  record,  371. 
foreclosure  of,  how  made,  372. 
proof  of  title  under,  373. 
MORTMAIN, 

statutes  of,  how  far  recognized,  251. 
MUNICIPAL  ORDINANCES, 

should  be  shown  in  abstract,  when,  330. 
executive  approval  of,  331. 
operation  and  effect  of,  332. 
and  resolutions,  333. 

NAVIGABLE  WATERS, 

what  are,  48. 

incidents  of  land  bounding  upon,  46. 
NEW  ENGLAND  ABSTRACTS, 

method  of  compilation  of,  Ap. 
NON-CLAIM, 

deed  of,  what  is,  222. 
NOTARY, 

must  affix  seal  to  official  certificate,  210. 

certificate  of,  when  defective,  209. 

may  not  acknowledge  deed  to  self,  210. 
NOTES, 

by  examiner,  how  inserted,  98,  218. 
NOTE-TAKING, 

utility  of,  considered,  Ap. 
NOTICE, 

general  doctrines  of,  61. 

constructive,  effect  of,  62,  64,  65. 

not  effected  by  the  destruction  of  record,  66. 

constructive,  decree  rendered  upon,  462. 

actual,  effect  of,  63. 

lis  pendens,  how  shown  in  abstract,  74,  442. 

of  mechanic's  lien,  433,  609. 

of  sale,  under  execution,  how  shown,  477. 

afforded  by  chancery  records,  500. 

of  easement  or  servitude,  610. 

imparted  by  possession,  361,  581. 
NUNCUPATIVE  WILLS, 

or  oral  declarations  not  sufficient  to  transfer  real  estate,  375. 

OCCUPANCY, 

nature  and  extent  of  rights  acquired  by,  51. 
OFFICIAL  BONDS, 

constitute  a  lien  on  land,  wheD,  429. 


782  INDEX. 

OFFICIAL  CERTIFICATES, 

may  be  shown  in  abstract,  how,  334. 
OFFICIAL  CONVEYANCES, 

defined  and  distinguished,  270. 
nature  and  effect  of,  271. 
OFFICIAL  AIDS  TO  SEARCH, 

what  are  and  how  consulted,  67. 
OPINIONS  OF  TITLE, 

general  remarks  concerning,  614. 
aids  in  rendering,  600,  601. 
how  framed,  613. 

clearness  of  expression  essential  in,  617. 
by  oral  communication,  618. 
erroneous,  liability  of  counsel  for,  619. 
ORAL  OPINIONS, 

undesirability  of,  618. 
ORDER, 

for  examination  of  title,  form  of,  103  note, 
of  publication  for  constructive  service,  505. 
of  confirmation,  in  judicial  sales,  486,  487. 
ORDINANCES, 

of  cities  and  towns,  when  necessary  to  be  shown,  330. 
practical  example  of  abstract  of,  330. 
executive  approval  of,  331. 
operation  and  effect  of,  332. 
ORIGIN, 

of  abstracts,  speculations  upon,  3. 
ORIGINAL  ENTRY, 

in  abstract  books,  how  made,  78. 
suggestions  as  to  form  of,  78. 
long  form  method  of,  80. 

PARTIES, 

to  deeds  and  other  instruments,  173,  175. 

names  of,  how  displayed  in  abstract,  174,  175. 

defects  or  errors  respecting,  how  shown,  201. 

to  land  contracts,  relation  of,  311. 
PARTITION, 

effect  and  nature  of,  248. 

deed  of,  how  shown,  248. 

proceedings  for,  how  shown  in  abstract,  513. 
PARISH  RECORDS, 

are  competent  as  evidence,  73. 
PARTNERS, 

lands  held  by,  how  regarded,  249. 

conveyances  by,  249. 
PARTY  WALLS, 

agreements  for,  effect  of,  337. 

how  shown  in  abstract,  337. 


INDEX.  783 

PATENTS, 

delined  and  distinguished,  141. 

formal  requisites  of,  156. 

operation  and  effect  of,  153,  154. 

registration  of — general  land  office  record,  152. 

construction  of,  155. 

how  shown  in  abstract,  156. 

from  the  state,  effect  and  construction  of,  157. 

formal  requisites  of,   159. 
PATENT  SYSTEMS, 

for  compiling  abstracts,  observations  upon,  75. 
PERFORMANCE, 

of  contract  to  convey,  sufficiency  of  deed  and  title,  318., 
PERPETUITIES, 

attempts  to  create  same  void,  402. 
PERUSAL  OF  ABSTRACT, 

general  suggestions  for,  591. 

utility  of  notes  as  an  aid  to,  592. 

analytical  chains  used  in,  601. 

use  of  sketch  maps,  602. 

preservation  of  memoranda  employed  in,  603. 

inquiries  in  pais  should  be  directed,  when,  608. 
PEDIGREE, 

to  prove  heirship,  example  of,  568  note, 
affidavit  of,  599. 
PLATS, 

of  public  surveys,  how  made,  161,   163,  164. 

of  private  surveys  and  subdivisions,   166. 

formal  requisites  of,   167. 

how  shown  in  abstract,  167. 

effect  of  registration  of,   168. 

vacation  and  cancellation  of,  169. 

dedication  by,  effect  of,  170. 

by  assessor  in  tax  proceedings,  528. 
POSSESSION, 

notice  imputed  from,  361. 
POST  OBIT  CONVEYANCES, 

effect  of,  286. 
POWERS, 

definition  of,  21. 

obtain  to  what  extent  in  United  States,  21. 

of  disposition  to  holder  of  life  estate,  392. 
POWERS  OF  ATTORNEY, 

general  doctrine  of,  262,  263. 

how  shown  in  abstract,  262. 

revocation  of,  264. 
POWER  OF  SALE, 

distinguished  from  trust  of  sale,  283. 


'784  INDEX. 

POWER  OF  SALE  — Continued. 

in  trust  deeds,  how  exercised,  364. 

how  shown  in  abstract,  363. 
PRECATORY  TRUSTS, 

what  are  and  how  created,  401. 
PRE-EMPTION  ENTRIES, 

of  public  lands,  how  effected,  111. 

nature  of  title  conferred  by,  112. 

what  lands  subject  to,  111. 

conveyances  made  before,  effect  of,  113. 

abstract  of,  from  government  tract  book,  129. 
PREFERENCES, 

among  heirs,  rules  of,  549. 
PRESCRIPTION, 

is  founded  on  what  presumptions,  45,  572. 

effect  of  on  title,  45,  572. 

limited  by  what  fixed  periods,  45. 

and  adverse  possession,  572,  580. 
PRESERVATION, 

of  memoranda  of  counsel,  603. 
PRESUMPTIONS, 

of  heirship  and  legitimacy,  566. 
PRIMOGENITURE, 

right  of,  not  recognized  in  United  States,  549. 
PRINTED  COPIES, 

of  abstracts,  opinions  concerning,  612. 
PRIVATE  LAND  CLAIMS, 

what  are,  and  how  established,  126a. 
PROBATE  PROCEEDINGS, 

in  respect  to  wills  and  testamentary  papers,  411,  414,  417. 

of  wills,  how  shown  in  abstract,  414. 

in  foreign  jurisdiction,  how  shown,  416. 

operation  and  effect  of  decrees  in,  497,  564,  568. 

in  intestacy,  how  shown  in  abstract,  568. 

to  show  death  and  heirship,  564,  569. 
PROBATE   SALES, 

validity  and  effect  of,  492. 

nature  and  requisites  of,  493. 

how  shown  in  abstract,  494. 
PROCESS, 

office  and  formalities,  501,  502. 

service  of,  how  made,  503. 

proof  of  service  of,  how  shown,  504. 
PROHIBITED  CONVEYANCES, 

former  and  present  state  of  law  respecting,  233.' 
PROOF, 

of  conveyance  by  official  certificate,  334. 

of  title  under  foreclosure  of  mortgage,  373. 


INDEX.  785 

PROOF  —  Continued. 

of  publication,  notice  of  sale,  478. 

of  title  under  judicial  and  execution  sales,  490. 

of  service  of  summons  in  legal  actions,  504. 

of  heirship,  how  effected,  34,  560. 

of  death,  35. 

of  birth  and  legitimacy,  565. 

of  adoption,  561. 

to  support  title  by  adverse  possession,  590. 
PUBLIC  LANDS, 

system  of  disposal  of,  106,  107,  108. 

public  sales  of,  107. 

private  entry  of,  108. 

subject  to  private,  what  are,  109,  110. 

pre-emption  entries  of,  111,  112. 

graduation  entries  of,  114. 

donation  entries  of,  115. 

entries  of,  under  homestead  laws,  116. 
under  desert  land  act,  118. 
under  tree  claim  act,  119. 

location  of  by  military  warrant,  120. 
by  U.  S.  land  scrip,  121. 

selections  of  under  swamp  land  grants,  122. 

disposal  of  in  aid  of  education,  123. 

and  internal  improvements,  124,  125. 

public  highways  upon,  126. 

private  claims  of,  126a. 

who  may  acquire  title  to,  127. 

inceptive  title  to,  how  shown  in  abstract,  128. 

town  site  entries  upon,  133. 

survey  and  division  of  under  U.  S.  land  laws,  161. 
PUBLIC  GRANT, 

title  by,  what  is,  40. 

synopsis  of,  in  abstract,  125. 
PUBLIC  SURVEYS, 

how  executed  and  returned,  161. 
PUBLICATION, 

constructive  service  by,  effect  of,  503,  504. 

of  notice  of  sale  under  execution,  477,  478. 

of  summons,  affidavit  and  order  for,  505. 
PURCHASE, 

title  by,  defined,  37. 

money,  application  of,  282. 
PURCHASER, 

may  require  to  be  furnished  with  abstract,  when,  11. 

abstract  becomes  property  of,  when,  11. 

must  see  to  application  of  purchase  money,  when,  282. 

at  official  sale,  as  charged  with  notice  of  what  defects,  472. 
50 


786 


INDEX. 


PURCHASER  —  Continued. 

at  execution  sale,  takes  what  title,  473. 
trustee  can  not  become,  of  trust  estate,  291,  292. 
tax  payer  can  not  be,  at  tax  sale,  531. 
rights  of,  at  tax  sale,  532. 

QUALIFICATIONS, 

of  examiner  of  titles,  8. 
QUIA  TIMET, 

action  of,  effect  of  on  title,  512. 
QUIT-CLAIM  DEEDS, 

legal  import  of,  219. 

how  shown  in  abstract,  220. 

effect  of  covenants  in,  221. 

RAIL  ROADS, 

grants  made  in  aid  of,  125. 
RECEIVER'S  RECEIPT, 

issued  at  time  of  entry,  108. 

does  not  constitute  evidence  of  title,  134. 

how  shown  in  abstract,  134. 
RECITALS, 

in  deeds,  how  shown  in  abstract,  187. 

effect  of  in  official  deeds,  272. 

in  sheriff's  deeds,  when  material,  274. 

in  tax  deeds,  537. 
RECORDS, 

consist  of  what,  58. 

depositories  of,  59. 

right  of  inspection  and  copy  of,  60. 

doctrine  of  notice  imparted  by,  61. 

afford  constructive  notice,  when,  62. 

loss  or  destruction  of,  66. 

when  abstract  may  supply  the  place  of,  66. 

as  aids  in  real  estate  examinations,  67. 

of  church  or  parish,  effect  of,  73. 

of  United  States  land  entries,  where  kept,  76. 

of  government  surveys,  effect  of,  77. 

of  general  land  office,  how  made  and  kept,  152. 

of  mortgages,  impart  notice  of  what,  360. 

of  chancery  proceedings,  495,  498. 

corrected,  how  shown,  239. 
RECTANGULAR  SURVEYING, 

exposition  of  the  system  of,  164. 
REDEMPTION, 

equity  of,  of  what  consisting,  344. 

bills  for,  how  shown,  515. 

from  tax  sale,  how  shown  in  abstract,  533. 


INDEX.  787 


REGISTRATION, 

American  doctrine  of,  62,  64. 

general  rules  regarding,  64,  65. 

effect  of  not  abrogated  by  destruction  of  record,  66. 

of  patents  from  United  States,  152. 

of  plats  and  subdivisions,  effect  of,  167,  168. 

of  deeds,  how  noted  in  abstract,  178. 

raises  of  presumption  of  delivery,  when,  197. 

of  mortgages,  effect  of,  360. 

of  death  certificate  when  evidence  of  fact,  563. 
RELATION, 

doctrine  of,  expounded,  44. 

of  parties  under  land  contracts,  311. 
RELEASE, 

as  a  substantive  mode  of  conveyance,  225. 

of  dower  by  wife,  23,  246. 

of  mortgage,  form  and  requisites  of,  368,  369. 

how  shown  in  abstract,  369. 

of  mortgage  by  trustee,  370. 

of  mortgage  on  margin  of  record,  371. 
RELICTION, 

defined  and  distinguished,  46. 

title  to  land  acquired  by,  46,  48. 
RELIEF  ACTS, 

how  shown  in  abstract,  140. 
RELINQUISHMENT, 

considered  as  method  of  passing  title,  52. 
REMAINDER, 

definition  of,  19. 

estate  in,  will  be  raised  when,  389,  396. 

contingent,  limitation  of  in  wills,  394,  396. 
REMAINDER-MAN, 

adverse  possession  will  not  lie  against,  583. 
REMOVAL, 

and  substitution  of  trustees,  268. 
REPRESENTATION, 

right  of,  among  heirs,  548. 
REPUGNANCY, 

in  deeds,  by  what  rule  governed,  201,  209,  211. 

in  wills,  how  construed,  382. 
REQUISITIONS  FOR  TITLE, 

made  by  counsel  on  examination,  596. 

answers  to,  598. 

of  what  consisting,  598. 
RE-RECORDS, 

how  shown  in  abstract,  238. 

of  mortgage,  how  shown,  362. 


788  INDEX. 

RESERVATION, 

distinguished  from  exception,  189. 

how  created  and  shown,  189. 
RESIDUARY  DEVISEE, 

when  charged  with  testator's  debts,  405. 
RESIGNATION, 

of  trustee  will  not  divest  the  trust,  269. 
RESOLUTIONS, 

of  municipal  boards,  should  be  shown  when,  333. 
RESTRAINT  OF  MARRIAGE, 

imposed  by  will,  validity  of,  395. 
RESTRICTIONS, 

inserted  in  conveyances,  effect  of,  190,  2^2. 
RESULTING  TRUSTS, 

general  doctrine  of,  237. 
REVERSIONERS, 

adverse  possession  will  not  run  against,  584. 
REVOCATION, 

of  power  of  attorney,  how  made,  264. 

of  trust,  266. 

of  wills,  409. 
RIPARIAN  TITLES, 

nature  and  incidents  of,  48. 
ROOT  OF  TITLE, 

of  what  consisting,  136. 
RULES, 

for  division  of  land  acquired  by  accretion,  46. 

of  descent,  30,  547. 

for  land  measurement,  Ap. 

SALES, 

of  public  lands,  how  made,  107. 

in  pursuance  of  judgments  and  decrees,  473,  482. 

in  probate,  492,  493. 

for  non-payment  of  taxes,  529,  530. 
SATISFACTION, 

of  mortgage,  distinguished  from  release,  368. 
form  and  requisites  of,  369. 
how  shown  in  abstract,  369,  371. 

of  liens  and  charges  generally,  418. 

of  judgment,  how  shown,  459. 
SCALE, 

for  indexing  abstract  books,  87. 

of  land  measures  in  United  States,  Ap. 
SCHOOL  LANDS, 

method  of  donation  of,  123. 

grant  of,  how  shown  in  abstract,  131. 


INDEX.  789 

SEALS, 

effect  of,  when  affixed  to  deeds,  194. 

of  notaries  Bhould  attest  acknowledgment,  196. 

of  corporations,  258. 
SECTIONS, 

of  public  land,  how  surveyed  and  subdivided,  162,  163,  164. 

diagrams  of,  163. 

when  made  fractional,  163,  165. 
SERVICE, 

of  process,  how  made  and  shown,  503,  504. 

proof  of,  how  made,  504,  505. 
SHELLY'S  CASE, 

rule  in,  effect  of,  182,  386. 
SHERIFF'S  DEED, 

operation  and  effect  of,  274. 

necessity  of  acknowledgment  of,  275. 

may  not  be  reformed  in  equity,  277. 

statutory  forms  of,  278. 

how  shown  in  abstract,  278. 

under  decree,  effect  of,  279. 

recitals  in,  when  material,  274. 
SIGNATURE, 

gives  efficacy  to  conveyances,  193. 

how  indicated  in  abstract,  193. 

in  execution  of  corporate  deeds,  256. 

to  deed  by  attorney  in  fact,  262. 
SOURCES  OF  TITLE, 

in  England  and  the  United  States,  17,  18. 

when  search  should  extend  to,  90,  129. 
SPECIFIC  PERFORMANCE, 

actions  for,  when  shown  in  abstract,  514. 
STAMPS, 

when  required  and  how  indicated,  199. 
STATE  LANDS, 

by  what  title  held,  and  how  disposed  of,  135. 

sales  of,  how  shown  in  abstract,  135. 

formal  requisites  of  patents  for,  159. 

effect  and  construction  of  patents  for,  157,  158. 

adverse  rights  will  not  run  against,  588. 
STATUTORY  FORMS, 

of  deeds  and  conveyances,  223. 

of  sheriff's  deed,  278. 

of  mortgage,  effect  of,  351. 

of  tax  deed,  535,  537. 
SUBDIVISIONS, 

of  the  public  lands,  how  made,  161. 

of  section,  163. 

resubdivisions  of,  166. 


790  INDEX. 

SUBDIVISIONS  —  continued. 

effect  of,  in  subsequent  conveyances,  166. 
formal  requisites  of,  167. 
how  shown  in  abstract,  167. 
vacation  and  cancellation  of,  169. 
by  assessors  for  taxation,  528. 
SUBSTITUTION, 

of  attorney  in  fact,  when  permitted,  263  note. 
SUCCESSION, 

line  of,  in  descents,  30,  547. 
rules  of,  according  to  civil  law,  31. 
through  adoption,  requires  what  to  be  shown,  33,  561. 
SUMMONS, 

how  shown  in  abstract,  501,  502. 
service  of,  how  made,  503. 
proof  of  service  of,  504. 
service  of  by  publication,  how  shown,  505. 
SURRENDER, 

considered  as  form  of  conveyance,  227. 
how  shown  in  abstract,  227. 
SURVIVORSHIP, 

in  joint  tenancies,  doctrine  of,  247. 
presumption  of,  in  case  of  disaster,  562. 
SURVIVING  CONSORTS, 

are  not  heirs  of   deceased,  553. 
SWAMP  LAND  GRANTS, 

origin  and  history  of,  122. 
selection  of  public  land  under,  122. 
SYNOPSIS, 

of  instruments,  suggestions  for,  95. 

TACKING, 

of  adverse  claims,  doctrine  of,  580. 
TAX, 

index,  how  laid  out  and  kept,  83. 

definition  and  nature  of,  522. 

what  property  subject  to,  523. 

lien  of,  attaches  when,  428,  524. 

sale  for  non-payment  of,  how  effected,  529. 
TAXATION, 

subjects  of  the  burdens  of,  523. 

proceedings  incident  to,  527. 

of  abstract  books  and  indices,  12. 
TAX  ABSTRACT, 

caption  of,  93. 

should  show  what  matters,  540. 
TAX  DEEDS, 

validity  and  effect  «f,  535. 


INDEX.  791 

TAX  DEEDS  —  Continued. 

formal  requisites  of,  537. 

how  shown  in  abstract,  537. 

effect  of  as  evidence,  538. 

how  aided  by  limitation  and  possession,  539. 
TAX  INDEX, 

of  the  examiner,  how  compiled  and  used,  83. 
TAX  SALE, 

how  made  and  how  shown,  529,  531. 

tax  payer  as  purchaser  at,  acquires  no  title,  531. 

rights  of  purchasers  under,  532. 

redemption  from,  how  shown,  533. 

certificate  of  purchase  of,  534. 

abstracts  of,  how  compiled,  540. 
TAX  TITLE, 

nature  and  extent  of,  525,  538. 
TECHNICAL  ESTOPPEL, 

application  of  principles  of,  in  examinations  of  title,  42. 
TECHNICAL  PHRASES, 

in  deeds,  effect  of,  181,  182. 

in  wills,  how  construed,  385,  387. 
TENANCIES, 

for  years,  of  what  consisting,  24. 
TENANTS  IN  COMMON, 

nature  of  the  estate  held  by,  247. 

deeds  by,  to  effect  partition,  248. 

when  partners  will  hold  as,  249. 

statute  of  limitations  does  not  run  as  between,  585. 
TESTAMENTARY  TITLES, 

character  and  effect,  374. 

formal  proof  of,  414,  416. 
TIDE  WATERS, 

common  law  of,  not  applicable  in  United  States,  48. 
TITLE, 

distinguished  from  estate,  14. 

methods  of  acquisition  of,  14,  15,  37. 

how  classified,  16. 

as  affected  by  the  doctrine  of  relation,  44. 

derived  from  what  sources,  17. 

nature  of  in  the  United  States,  18,  29. 

allodial,  nature  of  estate  held  under,  19. 

color  of,  what  constitutes,  26. 

evidences  of,  27. 

how  acquired  and  transferred,  28. 

by  purchase,  defined,  37. 

by  descent,  how  acquired,  28,  29,  542. 

by  deed,  28,  38. 

by  devise,  28,  39,  376. 


792  index. 

TITLE  —  Continued. 

by  public  grant,  28,  40. 

through  estoppel,  41. 

acquired  through  accretion  or  reliction,  46. 

to  lands  on  navigable  waters,  incidents  of,  46,  48. 

derived  through  eminent  domain,  53. 

by  dedication,  49. 

by  escheat,  55. 

derived  through  confiscation,  56. 

by  prescription  and  limitation,  45. 

preliminary  stages  of,  104. 

inceptive  measures  under  U.  S.  land  laws,  105. 

nature  of,  conferred  by  private  entry,  108,  109. 

conferred  by  general  laws,  111,  114,  115,  116,  118,  119. 

to  public  lands,  who  may  acquire,  127. 

acquired  by  sheriff's  deed,  274. 

of  assignee  in  insolvency,  297,  307. 

of  purchaser  at  execution  sale,  473. 

under  execution  sale,  vests  when,  474. 

under  judicial  sale,  483. 

purchaser  may  be  compelled  to  take,  when,  485. 

proof  of,  under  execution  and  judicial  sales,  490. 

derived  from  tax  sale,  525,  526. 

acquired  by  adverse  possession,  572,  590. 

opinions  of,  how  made,  613. 

analysis  of,  utility  in  examination,  600. 

validity  of,  in  framing  opinions,  604. 

flaws  in,  how  detected  and  obviated,  606. 

clouds  upon,  effect  of,  607. 
TOWNSHIP, 

how  surveyed  and  subdivided,  161. 

diagram  of,  161. 
TOWN  SITE  ENTRIES, 

how  made  and  for  what  purpose,  133. 

how  shown  in  abstract,  133. 
'TRACT  BOOK, 

of  the  government  land  office,  76. 

of  the  examiner,  how  compiled,  81. 
TREE  CLAIMS, 

on  public  lands,  how  effected,  119. 
TRUSTS, 

general  doctrine  concerning,  20. 

resulting,  generally  considered,  237. 

for  what  purposes  permitted,  20. 

words  which  create,  293. 

declaration  of,  how  made  and  shown,  267. 

created  by  will,  399,  401. 

precatory,  what  are  and  how  raised,  401. 


index.  y    793 

TRUSTEES, 

how  created,  265,  281,  399. 

declarations  by,  267. 

removal  or  substitution  of,  268. 

resignation  or  refusal  to  act  of,  269. 

transfers  of  legal  estate  by,  282. 

purchaser  must  see  to  application  of  purchase  money  by,  when,  282, 
283. 

deeds  and  conveyances  by,  281,  284. 

may  not  purchase  trust  estate,  291,  292. 

deeds  by  under  power  of  sale,  283. 

releases  by,  of  mortgaged  property,  370. 

in  testamentary  conveyances,  282,  399. 

may  not  delegate  trust  powers,  281. 
TRUST  DEEDS, 

character  and  effect  of,  363. 

power  of  sale  in,  how  shown,  364. 

in  nature  of  mortgage,  363. 

how  shown  in  abstract,  363. 
TRUST  OF  SALE, 

distinguished  from  power  of  sale,  282. 

UNITED  STATES, 

nature  of  title  to  land  in,  18. 

estates  in  land  recognized  by,  19. 

being  the  sovereign  power,  not  affected  by  estoppel,  43. 
or  limitation,  except  when,  43,  45. 

system  of  disposal  of  lands  of,  106. 
UNRECORDED  EVIDENCE, 

abstract  does  not  contemplate,  341. 
USES  AND  TRUSTS, 

nature  of  in  United  States,  20. 

defined  and  distinguished,  20. 
USER, 

and  possession  will  support  claim  of  title  when,  572,  578. 

VACATION, 

of  plats  and  subdivision,  169. 

how  shown  in  abstract,  169. 

of  streets  and  public  roads,  330. 
VENDOR, 

not  required  to  furnish  abstract  in  absence  of  contract,  11. 
VENDOR'S  LIENS, 

must  be  disclosed  to  bind  third  parties,  423. 
VERDICTS, 

should  be  noticed,  when,  508. 
VOLUNTARY  ASSIGNMENT, 

character  and  operation  of,  293. 


794  INDEX. 

VOLUNTARY  ASSIGNMENT  —  Continued. 

validity  of,  295. 

formal  requisites  of,  296. 

construction  and  effect  of,  298. 

conflict  of  laws  relating  to,  299. 
VOWEL  INDEX, 

object  and  method  of  use,  86. 

WARRANTY, 

covenant  of,  extends  to  what,  191,  216. 

of  title,  in  quit-claim  deeds,  effect  of,  221. 

against  acts  of  grantor  only,  effect  of,  222. 

how  construed  in  statutory  forms,  223. 

implied  from  words  of  grant,  191,  216. 
WARRANTY  DEEDS, 

legal  import  of,  216. 

how  shown  in  abstract,  217. 

with  limited  covenant,  222. 
WIFE, 

conveyances  to,  as  marriage  settlements,  240. 

conveyances  to,  and  to  husband,  effect  of,  241. 

conveyances  to,  from  husband,  242. 

conveyances  by,  to  stranger,  243. 

release  of  dower  by,  23,  246. 

deed  of,  how  acknowledged,  245. 
WILLS, 

agreements  for  conveyances  by,  321. 

general  doctrines  relating  to,  374. 

construction  and  operation  of,  378. 

when  real  estate  will  pass  under,  388. 

limitations  and  remainders  in,  389. 

contingent  remainders  created  by,  396. 

language  required  to  raise  trusts  in,  399. 

precatory  trusts  in,  how  expressed,  401. 

residuary  clause  in,  effect  of,  407. 

codicils  to,  effect  of,  408. 

formal  requisites  of,  410. 

abstract  of,  how  made,  411. 

probate  of,  effect  of,  414. 

construction  of  in  equity,  531. 
WITNESSES, 

to  deeds,  attestation  of,  how  shown,  195. 
WORDS, 

importing  technical  character,  387. 

which  pass  real  estate  in  wills,  388. 
WORDS  OF  GRANT, 

what  are,  in  deeds,  181. 
and  wills,  384. 


INDEX. 

WORDS  OF  PURCHASE  AND  LIMITATION, 

of  what  consisting,  182. 

in  leases,  wbat  are,  323. 

in  wills,  general  rules  of,  385. 

create  remainders,  when,  396,  397. 
WRIT, 

of  attachment,  how  levied,  445. 

of  execution,  levy  and  return  of,  475,  476. 


795 


INDEX  TO  FORMS. 


ABSTRACT, 

formal  captions  for,  93. 

general  examination,  93. 

special  examination,  93. 

examination  of  tax  title,  93. 

formal  conclusion  of,  103. 
ABSTRACT  INDICES, 

original  entry,  78. 

document  number  index,  79. 

tract  index,  81. 

irregular  index,  82. 

judgment  index,  84. 

tax  index,  83. 

scale  for  indexing,  87. 
ACKNOWLEDGMENT, 

notes  of,  196,  210. 

of  corporation  deeds,  256. 
AFFIDAVIT, 

general  form  of,  329. 

of  domestic  condition,  329,  339. 

of  pedigree,  599. 

of  matter  in  pais,  339. 

of  publication,  478. 
AGREEMENT, 

for  conveyance  by  deed,  316. 

for  party  wall,  337. 
ANALYSIS  OF  TITLE, 

to  show  ownership,  600. 

to  trace  course,  601. 

English  method,  Ap. 
ASSIGNMENT, 

by  register  in  bankruptcy,  307. 
ARRANGEMENT, 

of  abstract,  chain  of  title,  94. 
ASSESSMENTS, 

note  of  levy  of,  541. 
ATTACHMENT, 

proceedings  in,  445. 

certificate  of,  445. 

Y96 


INDEX    TO    FORMS.  797 


BANKRUPTCY, 

petition,  306. 
assignment,  307. 
assignee's  deed,  308. 
discharge,  309. 
BOND, 

for  deed,  320. 

CERTIFICATE, 

of  examination,    103. 

of  general  land  office  record,  156. 

of  public  officials,  334. 

of  conformity,  210. 

of  levy  (attachment),  445. 

of  sale   (execution),  488. 

of  sale  (judicial),  488. 

official,  334. 

of  proof  of  conveyance,  334. 

of  death,  563. 

of  proof  of  will,  413. 
CHANCERY  RECORDS, 

general  form,  509. 

in  special  cases,  513. 

in  partition  suits,  513. 

in  condemnation  suits,  520. 

notes  of,  divorce,  518. 
CONGRESSIONAL  GRANTS, 

act  of  Congress,  reinstatement,   140. 

by  way  of  confirmation,  140. 
CORPORATE  CONVEYANCES, 

corporation  deed,  255. 

special  appended  matter,  255. 

showing  power  to  execute,  255. 

DECLARATION, 

of  vacation  of  plat,  169. 

of  trust,  267. 
DECREE, 

common  form,  465. 
DEEDS, 

warranty,   217. 

warranty,  by  attorney,  262. 

warranty,   special,   222. 

confirmation,  226. 

in  futuro,  229. 

surrender,   common  law,  227. 

of  special  estates,  231. 

partition,  248. 


798 


INDEX    TO    FORMS. 


DEEDS  —  Continued. 

re-record  of,  238. 

duplicate,  238. 

by  corporation,  255. 

by  attorney  in  fact,  262. 

by  sheriff,  278. 

by  master,  280. 

by  trustee,  284. 

by  administrator,  288. 

by  register  in  bankruptcy,  307. 

by  assignee  in  bankruptcy,  308. 

by  county  clerk   (tax),  537. 

of  trust,  363. 

of   relinquishment,    246. 
DISCHARGE, 

in  bankruptcy,  309. 

on  margin  of  record,  371. 

of  judgments,  459. 

INDEX, 

of  original  entries,  78. 

of  document  number  record,  79. 

of  land  tracts,  81. 

of  tax  sales,  83. 

of  judgments,  84. 
INITIAL  STATEMENTS, 

entry  at  government  land  office,  129. 

donation  by  the  United  States,  130.    ■ 

cession  of  section  sixteen,  131. 

cession  of  lieu  lands,  131. 

receiver's  receipt,  134. 

commissioner's  receipt    (State  lands),  135. 

JUDGMENT, 

common   form,   454. 

note  of  satisfaction  of,  459. 

LEASE, 

for  years,  323. 

re-record  of,  283. 
LIS  PENDENS, 

notice  of,  442. 

MASTERS, 

certificate  of  sale,  488. 

deed.  280. 
MORTGAGES, 

common  form,  350. 


IMUKX    TO    FOKMS.  799 


MORTGAGES —  Continued,. 

to  secure  purchase  money,  357. 

re-record  of,  362. 

trust  deed,  in  nature  of,  363. 

power  of  sale  in,  363. 

release  of,  369. 

marginal  discharge  of,  371. 

NEW  ENGLAND  ABSTRACTS, 

sample,  Ap. 
NOTES, 

of  reference  to  original  documents,  100,  178,  201,  218. 

of  non-registration  of  instruments  shown,  140. 

of  reference  to  other  records,  263,  370,  371. 

of  certificate  of  magistracy,  210. 

of  convenant  of  non-claim,  222. 

of  chancery  records,  509. 

of  adverse  conveyances,  573 

of  probate  of  will,  413,  417. 

of  correction  of  record,  239. 

of  power  of  sale  in  other  instrument,  284. 

of  reference  to  municipal  records,  330. 

of  non-payment  of  taxes,  524. 

of  payment  of  taxes,  524. 
NOTICE, 

lis  pendens,  442. 

of  sale,  477. 

proof  of  publication  of,  478. 

OFFICIAL  CONVEYANCES, 

sheriff's   deed,  278. 

master's  deed,  280. 

trustee's  deed,  284. 

administrator's  deed,  288. 

assignee's  deed,  308. 

county  clerk's  deed   (tax),  537. 
ORDER, 

for  examination  of  title,  103. 
ORDINANCE, 

of  municipality,  330. 
OPINION  OF  TITLE, 

based  on  personal  search,  614. 

based  on  the  abstract,  616. 

PATENTS, 

from  the  United  States,  156. 
PEDIGREE, 

English  form  of,  568. 

affidavits  of,  599. 


800  INDEX    TO    FORMS. 

POWER, 

of  attorney,  263. 

of  sale,  363. 
PROBATE, 

of  wills,  413,  417. 

of  estate,  569. 

sales,  494. 
PROCEEDINGS, 

in  bankruptcy,  306. 

in  probate  (will),  413,  417. 

in  probate  (sale),  494. 

in  probate  (heirship),  569. 

in  chancery,  509. 

in  partition,  513. 

in  condemnation  suits,   520. 

for  divorce,  518. 

RECEIPTS, 

of  Receiver  U.  S.  Land  Office,  134. 

of  Commissioner  State  Lands,  135. 
RELEASE, 

of  dower,  246. 

of  mortgage,  369. 

on  margin,  371. 
RE-RECORD, 

of  deeds,  283. 

of  lease,  283. 

of  mortgage,  362. 
REVOCATION, 

of  power  of  attorney,  264. 

SALE, 

notice  of,  477. 

certificates  of,  488. 

for  taxes,  529,  530. 

in  bankruptcy,  307. 
SALES, 

in  probate,  494. 

in  chancery,  488. 

under  execution,  488. 
SCALE, 

for  indexing  books,  87. 
SHEEIFF'S, 

certificate  of  sale,  488. 
.   deed,  278. 
STAMPS, 

method  of  showing,  199. 


ItfDEX    TO    FORMS.  801 


SUBDIVISION, 

minutes  of  plat,  167. 

vacation  of,  169. 
SURRENDER, 

of  life  estate,  227. 

TAX  SALES, 

general  forms,  529. 

forfeiture,  530. 

certificate  of,  534. 

deeds  resulting  from,  537. 
TRUST, 

declaration  of,  267. 

deed  in,  363. 

VACATIOX, 

of  plat,  169. 

of  street,  330. 
VERIFICATION, 

of  copy  of  abstract,  612. 

WILLS, 

common  form,  413. 
with  special  provisos,  413,  417. 
proof  of,  413. 
probate  of,  413,  417. 
note  of  proof  of  death,  413. 
51 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIA 

LOS  ANGELES 


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